Abolitionism and the Paradox of Lethal Injection
Timothy V. Kaufman-Osborn
The U.S. Supreme Court's ruling in Baze v. Rees, which affirmed the constitutionality of Kentucky's lethal injection protocol, represented a setback, if not an outright defeat, for foes of the death penalty in the United States. Most obviously, the plurality opinion rejected the petitioners' proposed standard, which contended that the Eighth Amendment prohibits execution methods that pose an “unnecessary risk of pain” in light of available alternatives.1 Instead, Chief Justice John Roberts declared that, in order to constitute cruel and unusual punishment, a protocol must create “a demonstrated risk of severe pain,” and there must exist “feasible” and “readily available” alternatives whose use will “significantly reduce a substantial” measure of such harm.2 While this more stringent standard does not preclude challenges to the procedures employed by other states, it renders their success less likely, especially given Roberts's express declaration that any protocol that is “substantially similar”3 to that employed in Kentucky will pass constitutional muster.
In addition, for many members of the public, headlines such as “Justices Uphold Lethal Injection Procedure”4 are likely to alleviate if not eliminate worries that may have arisen in recent years about the alleged humanity of what is now effectively the sole method of execution employed in the United States. Moreover, the effort to challenge Kentucky's protocol required an enormous expenditure of time, labor, and money on the part of various segments of the abolitionist community; and, with the benefit of hindsight, those scarce resources might have been more profitably deployed to contest other problematic aspects of the death penalty. Last, and perhaps most important, with the lifting of the national stay