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.

FILED UNDER: Blogosphere, Law and the Courts,
Dodd Harris
About Dodd Harris
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 contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.


  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.

  2. Dodd says:

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

    That’s kinda eerie.