There Must Be a Means: The Backward Jurisprudence of Baze v. Rees
10 Pages Posted: 5 Feb 2011 Last revised: 15 Jul 2013
Date Written: 2009
The Supreme Court’s plurality opinion in Baze v. Rees begins with a seemingly simple assertion of constitutional law. “We begin with the principle, settled by Gregg, that capital punishment is constitutional.” It continues, “It necessarily follows that there must be a means of carrying it out.” This second pronouncement provides the foundation for the Supreme Court’s holding in Baze that Kentucky’s refusal to modify its lethal injection procedure does not violate the Eighth Amendment. However, in taking the position that the constitutionality of an existing method of capital punishment is dependent on the availability of alternative execution procedures, the Supreme Court has turned Eighth Amendment jurisprudence on its head, establishing a dangerous loophole that could imperil our most important constitutional protections. This essay highlights the error in the Court’s reasoning in Baze, and describes the potential consequences of applying this reasoning to other areas of constitutional law.
[SSRN posted version is a pre-publication draft]
Keywords: Capital Punishment, Cruel and Unusual, Lethal Injection
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