Lifting the Haze of Baze: Lethal Injection, the Eighth Amendment, and Plurality Opinions

65 Pages Posted: 26 Mar 2009 Last revised: 1 Aug 2012

See all articles by Justin F. Marceau

Justin F. Marceau

University of Denver Sturm College of Law

Date Written: March 23, 2009


For over six months, from October 2007 to April 2008, there was a de facto moratorium on all executions while state and lower federal courts waited for the Supreme Court to assess the propriety of lethal injection protocols under the Eighth Amendment. Unfortunately, the Supreme Court proved incapable of achieving even minimal consensus as to the interplay between the Eighth Amendment and lethal injection procedures. Chief Justice Roberts's plurality opinion in Baze v. Rees, which purports to provide a framework for use by lower courts evaluating the constitutional propriety of local lethal injection protocols, garnered the votes of only three justices. Far from resolving the lethal injection dispute, Baze leaves the individual states and lower courts to quarrel over the weight and precedential value to be accorded to the case's seven separate opinions. This Article addresses the fact the Court's jurisprudence regarding plurality opinions -- the Marks rule -- is frustratingly indeterminate in its application to any case, and antithetical to the Eighth and Fourtheenth Amendments in the context of capital cases. This is the first article to critique the unchallenged assumption that plurality opinions, such as Baze, generate reliably binding precedent in the context of capital appeals. Building on an established literature regarding the heightened importance of procedural regularity in the context of capital cases, this Article argues that the Court's current framework for discerning constitutional rules from plurality opinions-the Marks rule-has proven incapable of reliable and regular application, and therefore, must be revisited by the Court. After demonstrating the need for a clarifying standard regarding the application of plurality opinions in the capital context, this Article reflects on what a reformed approach to plurality precedent should look like. To this end, the second major premise of the Article is that although a variety of standards may produce the sort of regularity that is currently lacking in the context of plurality opinions, not every formula for discerning a holding from a plurality decision is consistent with the consensus and legitimacy concerns that lie at the heart of modern Eighth Amendment jurisprudence. Specifically, by directing attention to the oft-ignored, but longstanding, circuit split regarding the scope and application of plurality opinions, this Article calls for a re-examination of doctrines that would allow non-consensus based rulings to define the contours of Eighth Amendment law. In short, this Article addresses the intersection of plurality opinions, the death penalty, and the Eighth Amendment, and prescribes a two-tier inquiry for resolving the ambiguity that surrounds the Marks rule in this context.

Suggested Citation

Marceau, Justin F., Lifting the Haze of Baze: Lethal Injection, the Eighth Amendment, and Plurality Opinions (March 23, 2009). 41 Ariz. St. L.J. 159, 2009; U Denver Legal Studies Research Paper No. 09-03. Available at SSRN:

Justin F. Marceau (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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