Baze Effects

Orin Kerr over at the Conspiracy thinks the plurality opinion's new standard is unlikely to increase litigation, despite the fears of Justice Thomas (and the hopes of death penalty critics):

The requirement that the defendant prove a specific alternative should effectively keep Baze from generating endless litigation. It will force defendants to argue a very specific alternative: Don't kill me like that, kill me like this. If a state wants to litigate the issue and loses, the court will not enjoin the execution but rather will just order the state to execute the person in the different but also "feasible" and "readily implemented" way the defendant has proposed. And the state always has the option of eliminating the issue as a delay tactic: It can always cut off the litigation by just agreeing to the defendant's alternative method of execution.

I think this is a quite plausible prediction as to the future of Eighth Amendment death penalty litigation. The current precedent now says two things without question: 1) the death penalty is constitutional; and 2) so is lethal injection, until a death row inmate can prove there is a substantially more humane method of execution (at which point, he will be executed via that method).

Now of course this standard does not answer all of Justice Thomas' objections, but it does a pretty good job of halting "cruel and unusual" challenges to the death penalty for the foreseeable future without relying upon 18th century views regarding executions.