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In the Supreme Court of the United States No. 07-5439 In the Supreme Court of the United States RALPH BAZE , ET AL ., Petitioners , v. JOHN D. REES , ET AL ., Respondents. On Writ of Certiorari to the Supreme Court of Kentucky BRIEF OF HUMAN RIGHTS WATCH AS AMICUS CURIAE IN SUPPORT OF PETITIONERS BRETT DIGNAM ANDREW J. PINCUS Yale Law School Counsel of Record Supreme Court Clinic CHARLES A. ROTHFELD 127 Wall Street Mayer Brown LLP New Haven, CT 06511 1909 K Street, NW (203) 432-4800 Washington, DC 20006 (202) 263-3000 JAMIE FELLNER Human Rights Watch 350 Fifth Ave., 34th Fl. New York, NY 10118 Counsel for Amicus Curiae i QUESTION PRESENTED Amicus will address the following question: Does Kentucky’s three-drug lethal injection pro- tocol, which is used in some form by every State em- ploying lethal injection as a method of execution, vio- late the Eighth Amendment’s prohibition against cruel and unusual punishment? ii TABLE OF CONTENTS Page QUESTION PRESENTED.......................................... i TABLE OF AUTHORITIES...................................... iii INTEREST OF THE AMICUS CURIAE ....................1 INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................2 ARGUMENT ...............................................................3 THE EIGHTH AMENDMENT’S CRUEL AND UNUSUAL PUNISHMENT STANDARD SHOULD BE INFORMED BY INTERNATIONAL LAW NORMS REGARDING PERMISSIBLE METHODS OF EXECUTION...............................................................3 A. International Law Requires That Any Execution Pursuant To A Lawfully- Imposed Death Penalty Be Accomplished With The Minimum Possible Pain And Suffering.............................6 B. Kentucky Adopted The Three-Drug Lethal Injection Protocol Notwithstanding The Protocol’s Demonstrated Failure To Minimize Pain And Suffering.........................................11 CONCLUSION ..........................................................13 iii TABLE OF AUTHORITIES CASES Abdur'Rahman v. Bredesen , 181 S.W.3d 292 (Tenn. 2005), cert. denied, Abdur'Rahman v. Bredesen , 126 S. Ct. 2288 (2006).............................................................5 Baze v. Rees , 217 S.W.3d 207 (Ky. 2006).............................10, 12 Baze v. Rees , No. 04-Cl-1094, 2005 WL. 5797977 (Ky. Cir. Ct. Jul. 8, 2005).............................................11 Beardslee v. Woodford , 395 F.3d 1064 (9th Cir. 2005)................................5 Bieghler v. State , 839 N.E.2d 691 (Ind. 2005), cert. denied, Bieghler v. Indiana , 546 U.S. 1159 (2006)............5 Chitat Ng v. Canada , Communication No. 469/1991, U.N. Doc. CCPR/C/49..............................................................7 Enmund v. Florida , 458 U.S. 782 (1982)................................................4 Evans v. Saar , 412 F. Supp. 2d 519 (D. Md. 2006)........................5 iv TABLE OF AUTHORITIES—continued Page(s) Hamilton v. Jones , 472 F.3d 814 (10th Cir. 2007), cert. denied, Hamilton v. Jones , 127 S. Ct. 1054 (2007)............5 Hill v. McDonough , 126 S. Ct. 1096 (2006)............................................2 In re Kemmler , 136 U.S. 436 (1890)..............................................10 Morales v. Hickman , 415 F. Supp. 2d 1037 (N.D. Cal. 2006)..................5 Morales v. Hickman , 438 F.3d 926 (9th Cir. 2006), cert. denied, Morales v. Hickman , 546 U.S. 1163 (2006)...........5 Morales v. Tilton , 465 F. Supp. 2d 972 (N.D. Cal. 2006)....................5 Roper v. Simmons , 543 U.S. 551 (2005)............................................4, 9 Taylor v. Crawford , 445 F.3d 1095 (8th Cir. 2006)................................5 Taylor v. Crawford , 487 F.3d 1072 (8th Cir. 2007)................................5 v TABLE OF AUTHORITIES—continued Page(s) Thompson v. Oklahoma , 487 U.S. 815 (1988)................................................4 Timberlake v. Buss, (slip copy) , 2007 WL. 1280664 (S.D. Ind. 2007).......................5 Trop v. Dulles , 356 U.S. 86 (1958)..................................................4 Walker v. Johnson , 448 F. Supp. 2d 719 (E.D. Va. 2006) .....................5 Wilkerson v. Utah , 99 U.S. 130 (1878)..................................................5 STATUTES Ky. Rev. Stat. Ann. § 431.220(1)...............................11 MISCELLANEOUS 999 U.N.T.S. 171 .........................................................6 1465 U.N.T.S. 113 .......................................................8 1144 U.N.T.S. 123 .......................................................8 O.A.S.T.S. No. 67.........................................................8 vi TABLE OF AUTHORITIES—continued Page(s) E.S.C. res. 1984/50, annex, 1984 U.N. ESCOR Supp. (No. 1), U.N. Doc. E/1984/84 (1984)............9 ICCPR Gen. Comment 20, U.N. Hum. Rts. Comm., 44th Sess., U.N. Doc. CCPR/C/21/Add.3...................................................6 European Union General Affairs Council, Guidelines to EU Policy Towards Third Countries on Torture and Other Cruel, In- human, or Degrading Treatment or Pun- ishment (Apr. 9, 2001) ...........................................9 Statement of Conrad Harper, Legal Advisor, United States Department of State, to the United Nations Human Rights Committee, U.N. GAOR Hum. Rts. Comm., 53d Sess., 1405th mtg., U.N. Doc. HR/CT/404 (1995)............7 Matthew Waxman, Head of U.S. Delegation, Opening Statement on the Report Concern- ing the International Covenant on Civil and Political Rights (July 17, 2006) ......................7 Legislative Research Committee, Issues Con- fronting the 1998 General Assembly, In- formational Bulletin No . 198 , at 99 (Sept. 1997) .....................................................................11 vii TABLE OF AUTHORITIES—continued Page(s) So Long as They Die: Lethal Injections in the United States , Human Rights Watch (Human Rights Watch, New York, N.Y.) (April 2006) .............1 1 BRIEF OF HUMAN RIGHTS WATCH AS AMICUS CURIAE IN SUPPORT OF PETITIONER INTEREST OF THE AMICUS CURIAE Human Rights Watch is a non-governmental or- ganization established in 1978 to monitor and pro- mote observance of internationally recognized hu- man rights. It has Special Consultative Status at the United Nations, regularly reports on human rights conditions in the United States and more than sev- enty other countries around the world, and actively promotes legislation and policies worldwide that ad- vance protections of domestic and international hu- man rights and humanitarian law. Amicus has ex- tensively researched lethal injections in the United States and published a report on the matter. So Long as They Die: Lethal Injections in the United States , Human Rights Watch (Human Rights Watch, New York, N.Y.) (April 2006).1 Because amicus has unique expertise in the in- tersection between these areas of law and the Eighth Amendment, it submits this brief to assist the Court in resolving this case. 1 Pursuant to Rule 37.6, amicus affirms that no counsel for a party authored this brief in whole or in part and that no person other than amicus and its counsel made a monetary contribu- tion to its preparation or submission. Letters from the parties’ counsel consenting to the filing of this brief have been filed with the Clerk. 2 INTRODUCTION AND SUMMARY OF ARGUMENT Lethal injection has been touted as the most hu- mane method of execution and, to a layman, the claim is appealing. The methodology mimics con- trolled medical procedures and even evokes the eu- phemistic “putting to sleep” characterization of ani- mal euthanasia. The reality is considerably less pre- dictable and, at times, the equivalent of torture. State and federal courts across the country have faced a deluge of challenges to the three-drug proto- col used by every State that approves lethal injection as a method of execution. Even before the Court ap- proved § 1983 claims in Hill v. McDonough , 126 S. Ct. 1096 (2006), mounting evidence revealed serious flaws in the three-drug lethal injection protocol. Since prisoners have been able to bring § 1983 chal- lenges, evidentiary records in those proceedings sup- port the claims of opponents that the three-drug pro- tocol is inherently flawed and likely to cause severe pain and suffering. Although the evidence has been consistent, lower courts’ decisions have been varied and unpredictable, primarily because they lack guidance on the appro- priate legal standard to apply to Eighth Amendment method-of-execution claims. This Court has not di- rectly addressed such a claim in over a century. For- tunately, international human rights law provides a clear and practicable standard—whether the method of execution utilized inflicts the minimum possible pain and suffering. The international standard is unambiguous and consistent with, indeed supported by, this Court’s Eighth Amendment jurisprudence. By contrast, the standard applied by the Supreme Court of Ken- 3 tucky—whether the method of execution bears a substantial risk of the wanton infliction of unneces- sary pain—is unworkable. It fails to provide mean- ingful guidelines that comply with international hu- man rights law and the Eighth Amendment. The history of Kentucky’s adoption of its current three-drug lethal injection protocol reveals a legisla- ture acting with the intent to adopt a method of exe- cution more humane than electrocution. Neverthe- less, both the legislature and the Department of Cor- rections, the State entity charged with developing and implementing the lethal injection protocol, failed to conduct any research to ensure that the three- drug protocol was in fact less likely to cause
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