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Baze: first reaction

By Karl R. Keys, Esq.

With no clear opinion, Baze v. Rees is now decided. This is a loss for two former clients, but in some ways Baze appears to signal a sharp turn away from the Rehnquist Court’s capital jurisprudence. Lyle Denniston sums up the opinion succinctly: Chief Justice John G. Roberts, Jr.?s plurality opinion said that a death-row inmate cannot win a challenge to an execution protocol ?merely by showing a slightly or marginally safe alternative.? Instead, there must be proof that the options available must prevent a ?substantial risk of serious harm.? A state is free to choose a procedure, Roberts wrote, if it is shown to be ?feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.? The opinion then added: ?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 punishment? under the Eighth Amendment...continue to full post

Full post as published by Capital Defense Weekly on April 16, 2008 (boomark / email).