American University Law Review Volume 58 | Issue 3 Article 3 2009 Contemplating Cruel and Unusual: A Critical Analysis of Baze v. Rees in the Context of the Supreme Court's Eighth Amendment Proportionality Jurisprudence Katie Roth Heilman The American University Washington College of Law Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Criminal Law Commons Recommended Citation Heilman, Katie Roth. “Contemplating Cruel and Unusual: A Critical Analysis of Baze v. Rees in the Context of the Supreme Court's Eighth Amendment Proportionality Jurisprudence.” American University Law Review 58, no. 3 (February 2009): 633-663. This Comment is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Contemplating Cruel and Unusual: A Critical Analysis of Baze v. Rees in the Context of the Supreme Court's Eighth Amendment Proportionality Jurisprudence Abstract This Comment argues that, while the Court’s modern Eighth Amendment jurisprudence has gradually reduced the circumstances under which the death penalty may be imposed, this trend is inconsistent with the Court’s unwillingness to critically examine the specific procedures states use to execute, even in the face of growing concerns over the humaneness of such procedures. Part I gives a historic overview of the Court’s limited method-of-execution jurisprudence, followed by a review of the Court’s recent line of rulings on challenges to the death penalty’s proportionality. Part II analyzes Baze within the broader context of the Court’s Eight Amendment proportionality jurisprudence. It specifically argues that the Court’s gradual restriction of the administration of the death penalty with respect to certain classes of offenders and categories of crimes is inconsistent with its near indifference to the specific procedures states use to execute. Part III discusses the implications of the Baze decision and concludes with recommendations for states going forward with lethal injection and courts reviewing method-of-execution challenges. Keywords Baze v. Rees, Cruel and unusual punishment, Proportionality jurisprudence, Eighth Amendment This comment is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol58/iss3/3 COMMENTS CONTEMPLATING “CRUEL AND UNUSUAL”: A CRITICAL ANALYSIS OF BAZE V. REES IN THE CONTEXT OF THE SUPREME COURT’S EIGHTH AMENDMENT “PROPORTIONALITY” JURISPRUDENCE * KATIE ROTH HEILMAN Introduction.........................................................................................634 I. Background ...............................................................................637 A. A Historic Overview of Method-of-Execution Challenges...........................................................................637 B. Constitutional Challenges to the Death Penalty’s Proportionality....................................................................640 C. Toward a More Humane Method of Execution: The Use of Lethal Injection in the United States.............642 D. Cruel and Unusual Punishments Jurisprudence and the Struggle for a Uniform Constitutional Test................645 E. The Supreme Court’s Splintered Ruling in Baze ..............647 II. The Supreme Court’s Unwillingness To Critically Examine Method-of-Execution Challenges Is Inconsistent with Its Proportionality Jurisprudence .................................................649 A. The Supreme Court’s Claimed National Consensus Favoring Lethal Injection Is Illusory..................................650 B. Legislation Is Unreliable as an Objective Indicator of Lethal Injection’s Acceptability .........................................655 * J.D. Candidate, May, 2010, American University, Washington College of Law; B.A., Political Science, 2001, University of Richmond. Many thanks to Professor Stephen Wermiel for advising me during the writing process and to my Note and Comment Editor, Mallori Browne, for her invaluable assistance in developing this topic. I would especially like to thank my husband Erik for his patience, love, and support. 633 634 AMERICAN UNIVERSITY LAW REVIEW [Vol. 58:633 C. The Court’s Limited Review of Method-of-Execution Challenges Is Contrary to the Original Understanding of the Cruel and Unusual Punishments Clause................656 D. Medical and Scientific Considerations Do Not Offer a Compelling Justification for the Court’s Reluctance To Critically Analyze Execution Methods .........................658 III. Implications of the Baze Decision .............................................659 IV. Recommendations.....................................................................661 Conclusion ...........................................................................................662 INTRODUCTION On May 2, 2006, Joseph Lewis Clark was executed by lethal injection in Ohio for the 1984 murder of David Manning, a twenty- three-year-old gas station attendant.1 After prison personnel spent twenty-five minutes searching for a suitable vein, an “agitated” Clark raised his head and declared, “It don’t work,” five times.2 During a second attempt, which spanned thirty minutes, witnesses reported hearing Clark moan and cry out.3 At one point, Clark requested that prison officials give him “something by mouth to end this.”4 Finally, nearly ninety minutes after the procedure was initiated, Clark was pronounced dead.5 An autopsy report later revealed alarming evidence that Clark had been punctured with the needle nineteen times and had not been properly injected with the lethal drugs.6 The botched execution of Joseph Lewis Clark illustrates the modern legal controversy surrounding the administration of lethal injection in the United States.7 In recent years there has been a 1. John Provance & Christina Hall, Clark Execution Raises Lethal-Injection Issues, BLADE, May 4, 2006, at A1. 2. Id. 3. Adam Liptak, Trouble Finding Inmate’s Vein Slows Lethal Injection, N.Y. TIMES, May 3, 2006, at A16; see also MICHAEL L. RADELET, DEATH PENALTY INFO. CTR., SOME EXAMPLES OF POST-FURMAN BOTCHED EXECUTIONS (2008), available at http://www.deathpenaltyinfo.org/some-examples-post-furman-botched-executions (providing examples of botched executions, including Joseph Clark’s). 4. Andrew Welsh-Huggins, IV Fiasco Led Killer To Ask for Plan B, COLUMBUS DISPATCH, May 12, 2006, at E1. 5. RADELET, supra note 3 (“[W]itnesses later reported that they heard ‘moaning, crying out and guttural noises.’”) (citing Alan Johnson, ‘It Don’t Work,’ Inmate Says During Botched Execution, COLUMBUS DISPATCH, May 3, 2006, at 1A). 6. See Seema Shah, How Lethal Injection Reform Constitutes Impermissible Research on Prisoners, 45 AM. CRIM. L. REV. 1101, 1107 (2008) (“Misplacing the drugs in this manner would minimize the effectiveness of the anesthesia and make it much more likely that Mr. Clark was aware of the severe pain associated with awareness of the heart-stopping action of the final drug in the sequence.”); see also Jim Provance, Victim’s Relative Sides with Killer’s Kin, BLADE, May 30, 2007, at A3 (discussing how Clark’s execution was so disturbing that Manning’s brother, a witness to the execution, publicly denounced the procedure as excessively cruel). 7. Clark’s botched execution was one of at least twenty-nine botched lethal injection executions over the past three decades. See RADELET, supra note 3 2009] CONTEMPLATING “CRUEL AND UNUSUAL” 635 significant increase in litigation challenging the constitutionality of lethal injection, as new evidence has ignited concerns that the process by which it is administered may subject inmates to an excruciating death.8 This controversy culminated in the United States Supreme Court’s April 16, 2008, decision in Baze v. Rees.9 In Baze, the Court rejected a constitutional challenge to Kentucky’s three-drug lethal injection protocol, which two death row inmates argued created an “‘unnecessary risk’ of pain,” in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.10 In fact, the Supreme Court has never held an execution method unconstitutional.11 Baze marked only the second time in history that the Supreme Court considered such a challenge;12 the first was in 1878, when it upheld the constitutionality of the firing squad.13 The Supreme Court decided Baze the same day it heard oral arguments in Kennedy v. Louisiana,14 a case challenging the constitutionality of a Louisiana statute authorizing the death penalty for the rape of a child.15 The petitioner, Patrick Kennedy, was convicted of the aggravated rape of his eight-year-old stepdaughter in a crime so brutal that the Court found it impossible to describe “in a way sufficient to capture in full the hurt and horror inflicted on his victim or . the revulsion society, and the jury that represents it, sought to express by sentencing [Kennedy] to death.”16 The Supreme Court struck down Louisiana’s statute as unconstitutional under the Eighth Amendment, reasoning that a national consensus and the Court’s own informed judgment reflected a determination that death (cataloging, in a non-exhaustive list, the forty-one best known botched executions since 1982, including many in which lethal injection was the method of execution).