I was interested to see over at Capital Defense Weekly that Deborah Denno and other death penalty critics expect Baze v. Rees to lead to lots of additional capital litigation. I tend to disagree. To see why, let’s take a look at the key passage of Baze in Chief Justice Roberts’ plurality opinion:
The alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment. . . . A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.
As I read this passage, the existing three-drug protocol is constitutional unless the defendant both demonstrates a substantial risk of pain in his own case and also proves that there is a “feasible, readily implemented” alternative that “in fact significantly reduce[s] a substantial risk of severe pain.” That means that if a court holds a protocol unconstitutional, it can’t do so in the abstract: It has to say exactly what procedure can replace it.
The requirement that the defendant prove a specific alternative should effectively keep Baze from generating endless litigation. It will force defendants to argue a very specific alternative: Don’t kill me like that, kill me like this. If a state wants to litigate the issue and loses, the court will not enjoin the execution but rather will just order the state to execute the person in the different but also “feasible” and “readily implemented” way the defendant has proposed. And the state always has the option of eliminating the issue as a delay tactic: It can always cut off the litigation by just agreeing to the defendant’s alternative method of execution.
This is quite different from method-of-execution claims brought before Baze. In the past, the idea was that the three-drug protocol was unconstitutional but what should replace it was left open. Instead of having a specific alternative, the court was supposed to spend months or even years of study and hearings to determine what should replace it (during which there would be a moratorium on executions). This made states dig in their heels: They had no incentive to change their protocols because the defendants would just claim that the new standard was also unconstitutional.
That’s no longer true post-Baze. Win or lose, the states will have a specific protocol to follow and the executions will go forward.