In 2008, with Baze v. Rees, the Supreme Court broke decades of silence
regarding state execution methods to declare Kentucky’s lethal injection protocol
constitutional, yet the opinion itself did not offer much guidance. In the six
years after Baze, legal challenges to lethal injection soared as states scrambled
to quell litigation by modifying their lethal injection protocols. My unprecedented
study of over 300 cases citing Baze reveals that such modifications
have occurred with alarming frequency. Moreover, even as states purportedly
rely on the Baze opinion, they have changed their lethal injection protocols in
inconsistent ways that bear little resemblance to the original protocol evaluated
in Baze and even differ from one execution to the next within the same state.
States’ continuous tinkering often affects already-troubled aspects of their lethal
injection procedures. The compendium of these deficiencies has led to some of
the most glaring failures in lethal injection history.