Contact: Michael Rushford
(916) 446-0345
Oral argument in Baze v. Rees on Monday, January 7
Attorneys representing two Kentucky murderers will present oral argument Monday before the United States Supreme Court in a case which may determine if the lethal injection protocol followed by most death penalty states is unconstitutionally cruel and unusual.
In the case of Baze v. Rees, the defendants claim that three drugs used in Kentucky’s lethal injection process can cause “excruciating pain” if improperly administered and that, because other methods of execution with a “lower risk of causing pain or suffering” are available, the current process violates the Eighth Amendment’s prohibition against the “unnecessary and wanton infliction of pain.”
The California-based Criminal Justice Legal Foundation has joined the case to encourage a decision upholding the lethal injection process.
“The Eighth Amendment does not require a painless execution, and while states should make every reasonable effort to assure that the lethal injection process is properly carried out, the possibility of an error occurring that may cause pain does not render the process unconstitutional,” said Kent Scheidegger, the Foundation’s Legal Director.
The inmates, Ralph Baze and Thomas Bowling, were both convicted and sentenced to death for double murders. In 1992, Baze killed a Kentucky County sheriff and deputy sheriff who were attempting to serve him with several felony warrants. Baze killed Sheriff Steve Bennett with three shots in his back. He fired two shots into Deputy Arthur Briscoe’s back and then finished him off with a bullet in the back of the head at point blank range.
Bowling killed a Lexington couple and wounded their two-year-old son in 1990. After ramming Eddie and Tina Earley’s car in a dry cleaning parking lot, Bowling left his car, shot both parents and the child, returned to his car, and drove away.
In 2004, both murderers filed lawsuits challenging the constitutionality of the lethal injection process. The circuit court ruled that, with one exception, the state’s lethal injection protocol did not violate constitutional requirements. Last year, the Kentucky Supreme Court affirmed the lower court decision noting that the one problem had been corrected by the state following the lower court’s ruling.
After the United States Supreme Court agreed to hear the case last September, Baze told NBC News “if you are going to execute me, do it in a manner that is as humane as possible.”
In addition to their appointed legal counsel, groups who have filed argument supporting the inmates include the American Civil Liberties Union, murderers sentenced to death in California, Missouri, Maryland and Florida, and an organization called Critical Care Providers and Clinical Ethicists.
Supporting the state of Kentucky with amicus curiae (friend of the court) briefs are the United States Solicitor General, a joint filing by the states of Texas, Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Kansas, Mississippi, Missouri, Montana, Nevada, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and Wyoming, and the Criminal Justice Legal Foundation.
The Foundation’s brief argues that there is no constitutional requirement that the execution of the death penalty be completely painless or involve the minimum achievable risk of pain. So long as the method is not cruel, the method is within constitutional limits. The Foundation also stresses that both the families of murder victims and law-abiding society suffer when the lawful sentence of a brutal murderer is delayed for years by legal challenges to a method of execution which was once promoted by the defense side as the humane alternative.
“The Supreme Court needs to provide a clear answer regarding what is and is not permissible in this area, so that justice can be carried out,” said Scheidegger. “That is far more important than whether any particular method is upheld or struck down. These cases have already dragged on far too long.”