Baze v. Rees (07-5439), Burgess v. United States (06-11429) and Begay v. United States (06-11543)

April 21, 2008 Supreme Court Update

Greetings, Court fans!
We're back to catch you up on the three outstanding opinions from last week – all criminal, with the biggie coming in Baze v. Rees (07-5439), a splintered decision (yielding seven separate opinions) upholding Kentucky's use of lethal injection as a means of capital punishment. We'll begin there.
The issue in Baze was whether the risks involved in Kentucky's lethal injection protocol were such that it violated the Eighth Amendment's ban on cruel and unusual punishments. Like at least thirty other states, Kentucky uses three drugs for lethal injections: sodium thiopental, which induces unconsciousness to ensure that the prisoner feels no pain; pancuronium bromide, which induces paralysis and stops breathing; and potassium chloride, which causes cardiac arrest. Certified phlebotomists and EMTs set up the IVs for the drugs, while nonmedical personnel mix and administer the drugs via tubes from a control room (state law, and/or the Hippocratic oath, bars doctors or nurses from doing this). Prison officials are with the prisoner to make sure the sodium thiopental takes effect before the other drugs are administered. Baze and the other challengers conceded that this protocol, if followed properly, would be humane. They argued, however, that the risk of improper administration of sodium thiopental was too high, and that paralysis due to the pancuronium bromide would mask the prisoner's reaction to pain, creating an "unnecessary risk" of pain that violated the Eighth Amendment. Their alternative was a one-drug protocol using only barbiturates (used to put animals to sleep), and/or additional monitoring by trained personnel. The Kentucky courts disagreed, requiring the risk of unnecessary pain to be "substantial" and finding the risk of improper administration to be minimal.
The Court affirmed, but no opinion garnered a majority. The Chief wrote the principal opinion, for himself and Justices Kennedy and Alito. They agreed that an improper dose of sodium thiopental would create a constitutionally unacceptable risk of suffocation and pain from the other drugs, but held that Baze had not shown that the risk of an inadequate dose was substantial. The risk must be "sure or very likely" to give rise to "imminent dangers" such that it was "objectively intolerable." A petitioner could not make this showing simply by pointing to a marginally safer alternative, which would turn courts into "best practices" boards of inquiry operating far beyond their competence scientifically. Instead, the alternative must be feasible and significantly reduce a "substantial risk of severe pain." Here, it was hard to call Kentucky's approach "objectively intolerable" when thirty states and the federal government use it and no one has adopted the one-drug alternative. Also, given the clarity of the instructions for administering the drugs, the requirements for IV setup, and the other safeguards involved, the Kentucky courts' finding that the risk of improper dosing was minimal was not clearly erroneous. They also would not fault Kentucky for retaining pancuronium bromide, which hastens death by halting respiration and stops unconscious convulsions, preserving some dignity and preventing onlookers from misconstruing the convulsions as signs of distress.
Justice Stevens concurred in the judgment only. His is a fairly lengthy and curious opinion that does several things. First, it urges states to stop using pancuronium bromide due to the risk of pain it might produce or mask. (He rejected any interest in making witnesses feel better as justifying its use – if observers mistake involuntary convulsions as a reaction to pain, correct their misperception.) Second, it cites the Court's three justifications for the death penalty from Gregg v. Georgia (1976) – incapacitation, deterrence, and retribution – and concludes that none of them applies anymore. Incapacitation can be addressed by life without parole, there is no evidence that deterrence works, and if we are moving to more humane forms of execution like everybody says, then death does not really serve a retributive purpose. So Stevens thinks the Court and legislatures should revisit whether the death penalty is worth it. Third, he answers that question by noting the problems in administering the death penalty (discriminatory application, error, etc.) and concludes based on "my own experience" that it is "pointless" and has "such negligible returns" that it is cruel and unusual. Fourth, he nevertheless concludes that because the Court has upheld the death penalty and established a framework for assessing particular methods, he must follow these precedents, and Baze failed to make the necessary showing. So he joined the judgment despite all his misgivings.
Justices Scalia and Thomas also concurred in the judgment only, though they joined each other's opinions. Thomas found the plurality's "substantial risk of severe pain" test unprecedented and unworkable. It had no basis in the original understanding of the Eighth Amendment, which was intended to bar "torturous" punishments "deliberately designed to inflict pain" and enhance a death sentence (if you want to read about "gibbeting," here's your chance). The Court previously had adhered to that rationale, and Thomas saw no reason to abandon it. Also, notwithstanding the plurality's stated desire not to turn courts into medical review boards, Thomas thought that was exactly what its new standard would do. The point of Kentucky's protocol was to be humane, and there was no dispute that it is humane when followed; end of discussion. Scalia wrote largely in response to Stevens. He noted that the Constitution expressly refers to capital punishment in the Fifth Amendment, and the same Congress that proposed the Eighth Amendment also made several offenses punishable by death, so there is no authority for the proposition that the death penalty is unconstitutional. He also took issue with Stevens's gloss on the data regarding deterrence, but his more fundamental point was that it was not the Court's role to perform the cost-benefit analysis in the first place; that belongs to legislatures. And he savaged Stevens's reliance on his own "experience": "Purer expression cannot be found of the principle of the rule by judicial fiat." The experiences of everyone else – legislators who retain the death penalty, social scientists who find it has deterrent value, and citizens who support it – apparently do not count.
Justice Ginsburg wrote a dissent for herself and Justice Souter. Ginsburg viewed the Court's past method-of-execution cases – dealing with firing squads, electrocution, and (this sounds grim) reelectrocution – as too old and too vague to guide judicial review of a lethal-injection protocol. Rather than adopt the plurality's "substantial risk" test, she would bar methods that posed an "untoward, readily avoidable risk of inflicting severe and unnecessary pain." For her, the degree of risk, magnitude of pain, and availability of alternatives were "interrelated" factors, in that a strong showing on one score reduced the importance of the others. Here, while a properly administered lethal injection is painless, the consequences of a mistake were horrendous, so the tiebreaker was the feasibility of alternatives. Since the one-drug protocol was readily available, as were more rigorous means of testing whether prisoners were truly unconscious after receiving sodium thiopental, she would remand to the Kentucky courts to determine whether the state's failure to adopt those measures violated her standard.
There were two other opinions in the case. The seventh and final vote to affirm came from Justice Breyer. He bought into Ginsburg's framework, but he could not find in the record or the literature any evidence that Kentucky's protocol posed an "untoward" risk. Finally, Alito wrote a separate concurrence that, among other things, argued that Ginsburg's "untoward" standard was too vague and malleable, and would open the floodgates to litigation and end the use of the death penalty as a practical matter. For him, the constitutionality of a method of execution should be kept separate from that of the death penalty itself; the Court could take that issue on directly, but there should not be a de facto ban resulting from litigation gridlock.
The other two cases dealt with definitional issues under the Controlled Substances Act and the Armed Career Criminal Act. The Controlled Substances Act ("CSA") doubles the mandatory minimum sentence for certain federal drug crimes if the defendant was previously convicted of a "felony drug offense." Section 802(13) defines the unembellished term "felony" as an offense classified under federal or state law as a felony (just a wee bit circular), while Section 802(44) defines "felony drug offense" as "an offense [involving certain drugs] that is punishable by imprisonment for more than one year under the law of the United States or of a State or foreign country." The question in Burgess v. United States (06-11429) was whether a drug crime that South Carolina labeled a misdemeanor but that carried a maximum prison term of two years was a "felony drug offense" under the CSA that doubled the mandatory minimum.
A unanimous Court, led by Justice Ginsburg, found that it was (shockingly, without even a mention of the beloved statutory construction canon that the specific trumps the general). The Court held that Congress used "felony drug offense" in the CSA as a term of art and defined it fully and exclusively in section 802(44). Subjecting the CSA's penalty enhancement provision to section 802(13) on top of 802(44) would yield anomalous results. For example, "felony drug offense" clearly encompasses crimes in foreign countries, while "felony" does not, so applying both criteria would exclude criminals Congress clearly intended to cover. Further, many states and foreign countries do not differentiate between felonies and misdemeanors, so defendants in these jurisdictions would escape the CSA's enhancement provisions regardless of the severity of their prior crimes. Applying section 802(44)'s definition would avoid all of these problems. Moreover, the CSA used to define "felony drug offense" based on how the offense was labeled, but Congress scrapped that definition in 1994 in favor of the current language, which focuses on substance rather than form and thus is more uniform and fair. All in all, an easy result for the Court.
Begay v. United States (06-11543) proved not so easy, splitting the Court 5-1-3. The Armed Career Criminal Act ("ACCA") imposes a mandatory minimum sentence of fifteen years on a felon who unlawfully possesses a firearm and who has three or more convictions for certain drug crimes or a violent felonies. A "violent felony" is defined as a crime punishable by imprisonment for more than one year (sound familiar?) that involves the use or threat of force or "is a burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Begay received ACCA' s fifteen-year mandatory minimum sentence because of numerous DUI convictions in New Mexico (where DUIs become felonies after three convictions; Begay had twelve). He argued that DUIs are not violent felonies under ACCA. The Court agreed, led by Justice Breyer (joined by the odd grouping of the Chief and Justices Stevens, Kennedy and Ginsburg). The majority did not dispute that DUIs can pose a "serious potential risk of physical injury to another." For ACCA purposes, however, they interpreted this phrase in light of the list of enumerated crimes preceding it – finding that the catchall only encompassed crimes of a similar kind and involving a similar degree of risk as the enumerated crimes. Those crimes – burglary, arson, etc. – typically involve purposeful, violent, and aggressive conduct, qualities the average strict-liability DUI crime does not possess. Limiting the catch-all in this way makes sense because it applies ACCA's mandatory minimum where a defendant's past conduct suggests that his possession of a weapon will be particularly dangerous; an arrest for DUI probably does not qualify. Also, legislative history suggested this was Congress's intent.
Justice Scalia concurred in the judgment only, taking the majority to task for grafting onto ACCA a new requirement that prior convictions must involve purposeful, violent, or aggressive conduct. For Scalia, burglary, arson, etc. were relevant only to show what Congress had in mind when it referred to "serious potential risk." Scalia identified burglary as the item in the list with the lowest apparent risk of physical injury to another; because the government failed to establish that a DUI presents at least as great a risk as a burglary, Scalia joined in the judgment reversing Begay's sentence. Justice Alito dissented, joined by Justices Souter and Thomas. They essentially agreed with Scalia's framework but thought a DUI matched the degree of risk posed by the crimes in the list, so they would have upheld Begay's sentence.
Look for us in your inbox again shortly, as the Court should be releasing more opinions this week.

Kim & Ken

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400