I did say there might be some blawging lite from the US, where I’m currently staying with my cousin Cara in Las Vegas (that’s right!), so here is an all-American caffeine-and sugar-free post, with the judgment (given a few weeks ago now, but very appropriate now given my transatlantic holidaying) of the US Supreme Court in the case of Baze v Rees (Kentucky Dept. of Corrections). You may remember I posted about this case back in January just after the hearing.

The Court has affirmed the Kentucky Supreme Court’s judgment below, holding by a majority (or a plurality, as the judges themselves express it) that the protocol does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.

Justice Scalia thought, in his concurring opinion in which Justice Thomas joined, that a punishment would only violate the Constitution if intended to inflict pain; Justice Stevens, in an extraordinary opinion, argues that the death penalty in itself violates the Constitution but nonetheless joins the majority in ruling Kentucky’s lethal injection system lawful, based on precedent. I find that hard to understand, I must say: either he believes in a legal analysis that precludes capital punishment – in which case why accept precedent? Or he doesn’t, in which case, where does his reasoning come from? Justice Ginsburg, in whose dissenting opinion Justice Souter joined, thought Kentucky‚Äôs method lacks basic safeguards to confirm that an inmate is unconscious before injection of the second and third drugs: he wanted to send the case back to the Kentucky courts to apply to the facts a test of whether there was an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

So, lethal injection continues to be lawful in the US, at least under Kentucky’s method.