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SupCt Upholds Lethal Injection

Chief Justice Roberts, joined by Justice Kennedy and Justice Alito, concluded that the Commonwealth of Kentucky’s lethal injection protocol satisfies the Eighth Amendment and need not be struck down merely because “untried and untested alternatives” might present a lower risk of undue pain.

Curiously, Roberts opinion only attracted two other votes (Kennedy and Alito). Stevens concurred in the judgment but believes the Chief Justice’s opinion will result in more litigation, not less. Scalia and Thomas also concurred in the judgment but found, not surprisingly, that the decision is not rooted in a proper understanding of the Cruel and Unusual Punishments Clause. Breyer also concurred but examined the matter on a more straightforward evidentiary basis, finding insufficient grounds “to believe that Kentucky’s lethal injection method creates a significant risk of unnecessary suffering.”

Ginsburg and Souter dissented on the grounds that Kentucky’s protocol for administering the first anesthetizing drug lacks sufficient safeguards to ensure unconsciousness before the second and third (potentially very painful) drugs are administered.

UPDATE: I heartily encourage you to read Beldar’s summation of the various and sundry opinions and issues underlying them. It’s not as succinct as mine here, but it’s considerably more entertaining.

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About Dodd
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He can kill a mime using only his thumb. He joined the staff at OTB in May 2007. Follow Dodd on Twitter.


  1. Beldar says:

    Justice Ginsberg, joined by Justice Souter, believe that the Eighth Amendment to the Constitution of the United States requires executioners to tickle the eyelashes of apparently unconscious condemned murderers, and to call their names aloud.


    Either a Pres. Obama or a Pres. Clinton-44 would do their best to appoint clones of Justice Ginsberg to the SCOTUS.

    I agree that it’s very unusual, and significant, that Thomas and Scalia approached the case so differently than Roberts, Alito, and Kennedy did. My own extended take on today’s decision is at this link.

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  2. Dodd says:

    I was posting my UPDATE linking your post even as you were posting that comment.

    That’s kinda eerie.

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  3. BeldarBlog says:

    Beldar on Baze…

    Today, in Baze v. Rees, the SCOTUS rejected two capital defendants’ challenge to Kentucky’s intended use of the three-drug cocktail for administering its death penalty. The vote was seven to two — only Justices Ginsberg and Souter voted to reverse …

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