The justices dealt with a perennially difficult issue in two major cases this Term.  Executions all over the country were put on indefinite hold when the Court announced that it would accept an appeal from two inmates on Kentucky's death row claiming that lethal injection violated the Eighth Amendment ban on cruel and unusual punishment. Ralph Baze and Thomas Bowling, each convicted of double murders, did not claim innocence or that they had received an unfair trial, but objected to what they said could be an extremely painful execution.

Of the thirty-seven death penalty states, all but one utilize a three-step process as the preferred method of execution. (Nebraska uses electrocution.) After the condemned is connected to an intravenous tube, he is first injected with sodium thiopental, a short-acting anesthetic, followed by pancuronium bromide, a muscle paralyzer, and finally by potassium chloride to stop the heart. Theoretically, the first two steps ease the way for the third, making lethal injection a more humane method of execution than an electric chair, gas chamber, or firing squad.

The problem, as the appellants claimed in Baze v. Rees, is that the combination of drugs are usually chosen at random with no guarantee that they will work, thus resulting in great and unnecessary pain, and that usually the process is handled by untrained personnel, since state medical associations are almost unanimous in prohibiting doctors from taking part in executions. Critics of the procedure point to such horror tales as California's use of ill-trained executioners (including one who smuggled illegal drugs into prison) and Missouri's reliance on a doctor who supervised 54 executions despite more than twenty malpractice suits in his regular practice and evidence that he had wrongly mixed the "cocktail" ingredients because of his own dyslexia. In some states the mix consists of drugs that the legislature has banned for use in putting down animals because of the risk of excessive and unnecessary pain.

At the least, critics of the current practice wanted the Supreme Court to set a standard for lethal injections that would include the type of drugs used and the qualifications of those administering the injection.  At oral argument, however, the justices seemed skeptical whether the evidence showed that the risk of pain raised a sufficient constitutional argument about cruel and unusual punishment.  The counsel for Kentucky acknowledged that there was a risk that if improperly administered, the cocktail could cause excruciating pain, but claimed that the state had put in sufficient safeguards to prevent that from happening. Supporting briefs offered so much contradictory testimony, much of it anecdotal, that Justice Breyer, for example, said that he was "left at sea" and wanted to send the case back to a lower court for further fact-finding. Justice Scalia, on the other hand, dismissed the pain argument on the grounds that nothing in the Constitution required that the method of execution be the one inflicting the least amount of pain.

In the end, all but two justices supported lethal injection, although in a set of fractured opinions.  Chief Justice Roberts wrote the majority opinion, joined in full only by Kennedy and Alito, that left many questions unanswered.  While methods of execution could still be challenged, there would have to be some showing that the state's methods created a demonstrated risk of pain, and that alternatives existed that were feasible and readily implemented that could significantly reduce that risk.

Justice Alito, as well as Stevens, Scalia, Thomas, and Breyer, all wrote concurring opinions, Alito complaining that the Chief Justice's opinion was insufficiently conclusive and left the door open to misinterpretation and further litigation. Justice Ginsburg, joined by Souter, wrote what one reporter called "a carefully modulated, almost minimalist" dissent in which she did not declare the Kentucky protocol unconstitutional but suggested that the Court should "vacate and remand" the Kentucky Supreme Court's decision and direct it to determine whether the state's safeguards are sufficient to avoid severe and unnecessary pain.

In an unusual concurrence, Justice John Paul Stevens said that he felt precedents compelled him to support the majority decision, but that he had come to the conclusion that the death penalty itself was unconstitutional, thus becoming the first justice since Harry Blackmun to adopt that position. Stevens, who just concluded thirty-three years on the bench, had announced the opinion in Jurek v. Texas (1976), one of three cases in which the Court gave approval to a new generation of death penalty statutes.  In recent years, however, he has become more critical both of how states handle the death penalty and how the Court reviews those decisions.

The decision, reached on April 16, 2008, ended the moratorium on executions that had been in effect since the previous fall.  The Court lifted the stays on pending executions it had issued prior to handing down the Baze decision, and states began scheduling executions. Three weeks later Georgia put to death William Earl Lynd for the brutal kidnap and murder of his girl friend in December 1988.

On the same day that the Court handed down its decision in the Baze case, it heard oral argument in Kennedy v. Louisiana on the constitutionality of a state law imposing the death penalty for the rape of a child. Patrick Kennedy was convicted of raping his eight-year-old stepdaughter in 1998 in an assault so brutal that the girl required surgery. That particular issue had never been heard by the high court, but in Coker v. Georgia (1977), the Court speaking through Justice Byron White held that the death penalty for rape was excessive, since the rapist does not take human life. In that case the victim, although only sixteen years old, was held to be an adult woman.

Louisiana legislators took that to mean that an open question existed about an appropriate punishment for a man who rapes a child, and enacted a law imposing the death penalty for anyone raping a child under twelve. The state's Supreme Court ruled that children require special protection from society and that the "degradation and devastation of child rape, and the permeation of harm resulting to victims of rape in this age category" justified the death penalty.

The Supreme Court in a 5-4 decision disagreed. Justice Anthony Kennedy joined the Court's more liberal members in continuing a trend of narrowing the number of criminals eligible for death.  While the harm caused a child who is raped is "grave," it cannot "be quantified in the same way as death of the victim."  Kennedy's opinion in essence tracked that of Justice White in Coker three decades earlier.

Justice Alito dissented, joined by Roberts, Scalia, and Thomas, and argued that deference should have been paid to the Louisiana legislature's decision, and that the majority's "sweeping" opinion ruled the death penalty inappropriate "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime."

Kennedy referred to "evolving standards of decency," a phrase attacked by the dissenters, and noted that the death penalty for child rape existed only in six states, and not under federal law. He did not refer to the fact that only China, Saudi Arabia, and Egypt impose the death penalty for child rape.

(In a highly unusual event, about a week after the decision the Justice Department said that government lawyers should have known that Congress in 2007 had in fact made the rape of a child a capital offense in the military, and should have informed the Supreme Court of that fact. Neither side in the case, Louisiana nor the attorneys for the defendant, apparently knew about this, and Kennedy in his opinion relied on the fact that when Congress expanded the number of federal capital crimes in 1994 it did not include child rape.  Louisiana, upon learning of this, immediately petitioned the Supreme Court for a rehearing, a decision that would require the vote of five justices.  That decision will probably not take place until the Court convenes for the October 2008 Term.)

In another death penalty case, the justices by a 7-2 vote threw out the death sentence and conviction for murder of Allen Snyder, on the grounds that the Louisiana prosecutor improperly excluded blacks from the jury.  Justice Alito's majority opinion chastised the trial court judge for not having acted to prevent the prosecutor from what was clearly an unconstitutional act.  Only Justices Scalia and Thomas believed the Court should not second-guess a trial judge. (Snyder v. Louisiana) Although the opinion tracked the facts of this case, it elaborated on the rule first announced in Batson v. Kentucky (1986), which allowed defendants to challenge jury selection on the ground of racial discrimination.