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04/21/08
The case, Baze v. Rees (07-5439), was decided 7-2 with a lot of opinions. There was no official majority opinion, but there was a plurality along with a lot of opinions — only two justices did not write. Chief Justice Roberts wrote the plurality opinion, joined by Justices Alito and Kennedy. Justices Stevens, Scalia, Thomas, and Breyer joined the result only. Justices Ginsburg and Souter dissented. Justices Souter and Kennedy did not write an opinion.
The Court concluded that the Kentucky death row procedure is constitutional, and other states that have substantially similar practices are okay. This will pave the way for a resumption of executions, with Florida already out of the gate.
Lawyers on both sides of the death penalty debate have lots of fodder to chew over with this opinion. Opponents will cheer Justice Stevens's coming out and calling the death penalty unconstitutional. Supporters of the death penalty have a much clearer path forward, with states having clear instructions on how to make their procedures constitutional. Thus, stays of execution based on cruel and unusual grounds are likely to be few and far between.
If you are in the death penalty litigation business, there's lots of new material to pore over. Expect to see a major surge in executions that have built up awaiting this ruling.
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