Case closed. Lethal injection is not unconstitutional. So the U.S. Supreme Court ruled with a 7-2 decision Wednesday. After years of bad lawyering and bogus medical research on lethal injection, common sense has prevailed.
Chief Justice John Roberts, joined by two justices, wrote the main Baze vs. Rees case opinion. There were three concurring opinions, and one dissent, written by Justice Ruth Bader Ginsburg and joined by Justice David Souter.
"In essence, seven judges agreed with the core ruling, that the Kentucky process was not unconstitutional," noted Michael Rushford of the pro-death penalty Criminal Justice Legal Foundation in Sacramento. In that Kentucky's lethal-injection protocol is similar to California's three-drug protocol, this 7-2 decision should spell an end to the pricey, frivolous and utterly disingenuous lawsuits filed in California and other states to stall the execution of guilty killers.
Ralph Baze killed two cops serving warrants against him in 1992, and does not regret doing so. Fellow plaintiff Thomas Bowling shot and killed a young couple and wounded their 2-year-old son in 1990.
They're stone-cold killers, so it should be no surprise that their attorneys presented a patently dishonest argument -- that they do not oppose capital punishment per se, but want the court to order lethal injection by a massive dose of barbiturate. You see, the plaintiffs conceivably might feel pain under the three-drug injection process that starts with barbiturates, is followed by a paralytic agent and finishes with a drug that causes cardiac arrest. Unlike their victims, these killers argue they should not face the possibility of pain.
Of course, if the Big Bench ever were to grant that disingenuous request, attorneys could appeal anew on the grounds that no state had ever used a one-drug protocol.
It is hard to respect the plaintiffs' argument when it plays off of lawmakers' good intentions. As Justice Clarence Thomas wrote, "It is not a little ironic -- and telling -- that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is subject to today's challenge." Having failed to persuade courts to overrule capital punishment as unconstitutional "in an exercise of raw judicial power," death-penalty foes turn to "the next best option" -- that is, "never-ending litigation."
This bad lawyering would have gotten nowhere were it not for bad science. In 2005, the British medical journal The Lancet reported that blood samples taken from executed prisoners showed concentrations of barbiturate that "were lower than that required for surgery in 43 of 49 executed inmates." To their credit, the justices were aware that the so-called study was stacked. Blood samples were taken several hours to days after execution.
Where does Roberts' ruling leave California? In 2006, U.S. District Judge Jeremy Fogel stayed executions in California after entertaining an appeal against the three-drug protocol filed for convicted murderer/rapist Michael Morales.
Dane Gillette, a senior assistant attorney general, expects the ruling to "resolve the Morales federal litigation." (It's too bad a Marin County judge ruled in October that the new protocol proposed to meet Fogel's concerns must be stalled to accommodate public comment.)
While the ACLU is unhappy with the ruling, ACLU donors should rejoice. Now the civil-rights group can save its money for appeals representing innocent clients -- instead of on laughable briefs that bring credit to no one. Not even the likes of Baze and Bowling.