Tinkering With the Mechanisms of Death

While the new Supreme Court term technically kicks of next week, the Court got going early with a whole bunch of cert grants for cases it will resolve in the coming year. Undoubtedly, the one that will draw the most attention is Baze v. Rees, in which the Court will consider whether Kentucky's lethal injection protocol violates the Eighth Amendment's prohibition on cruel and unusual punishment.

This is a big deal, not only because any case in which the Court tinkers with the death penalty gets partisans up in arms. As Lyle Denniston over at SCOTUSBlog points out:

Not since March 17, 1879, has the Supreme Court faced a constitutional test over a method of carrying out the death penalty. On that day, in Wilkerson v. Utah, it upheld a court's order that one Wallace Wilkerson be taken to a place within the Utah Territory 'and that you there be publicly shot until you are dead' -- that is, by firing squad.

In a 13-line order released on Tuesday morning, the Court opted to return to that question -- this time, apparently, to lay down a legal standard on when it could violate the Eighth Amendment to execute a convicted individual by using a three-chemical combination -- a specific protocol now in use in 36 states. (Among the 38 states that retain the death penalty, only New Jersey uses a different lethal injection protocol, and Nebraska executes only by the electric chair.)

The 20th Century was a steady progression in methods of execution in a quest for a more "humane" way for the state to kill people - from hanging and firing squad to electrocution to the gas chamber to lethal injection. It's fairly amazing that, given the Court's preoccupation with capital issues over the years, that it hasn't dealt with a similar issue in more than a century.

Having said that, I'll be stunned if the Court strikes down the procedure.