Eighth Amendment Challenges After Baze v. Rees: Lethal Injection, Civil Rights Lawsuits, and the Death Penalty

Abstract

In Baze v. Rees, the U.S. Supreme Court upheld the constitutionality of Kentucky’s lethal injection protocol, which utilizes a three drug combination to execute death row inmates. To challenge a lethal injection protocol in the future, the Court stated that an inmate would have to make a showing that the protocol in question presents a “substantial risk of serious harm” or an “objectively intolerable risk of harm.” In addition, the inmate would have to show the existence of a feasible alternative that can be readily implemented and would “significantly reduce a substantial risk of severe pain.” The standard set forth in Baze makes it difficult for inmates to challenge lethal injection protocols. This Article discusses the implications of Baze in the lower courts and examines the use of state administrative procedure acts as an alternative litigation strategy.