The following opinions were released by the U.S. Supreme Court on April 16, 2008:

• Baze v. Rees (7-2 opinion upholding constitutionality of lethal injection; Roberts, C.J., plurality opinion, joined by Kennedy, Alito, JJ.; concurring opinion by Alito, J.; concurring opinion by Stevens, J.; concurring opinion by Scalia, J., joined by Thomas, J.; concurring opinion by Thomas, J., joined by Scalia, J.; concurring opinion by Breyer, J.; dissenting opinion by Ginsburg, J., joined by Souter, J.). Kentucky and at least 29 other states (out of 36 that employ lethal injection) administer the death penalty via lethal injection involving a similar three-drug protocol. The petitioners challenged Kentucky’s method of lethal injection on the basis that, although not unnecessarily painful if administered correctly, the three-drug method carried the inherent risk of being administered incorrectly and leading to unnecessary infliction of pain and suffering on the executionee, and that alternative methods were available that would avoid this risk. Chief Justice Roberts’s plurality opinion holds that the Kentucky method of lethal injection is constitutional under the Eighth Amendment. The plurality recognizes that “some risk of pain is inherent in any method of execution,” and that “the Constitution does not demand the avoidance of all risk of pain in carrying out executions.” Plurality, slip op., at 8. The plurality holds that the risk that the lethal injection protocol might be administered improperly and result in some risk of pain does not meet the standard that the punishment present a “substantial risk of serious harm” or an “objectively unreasonable risk of harm.” Plurality, slip op. at 11. The plurality holds that “isolated mishap[s]” do not render an execution method violative of the Eighth Amendment. Id. The plurality then rejects the petitioners’ proffered alternative methods analysis, finding that it amounts to a “best practices” standard that would embroil trial courts in endless scientific disputes beyond their competence. Plurality, slip op. at 12. Instead, the plurality holds that proffered alternatives “must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.” Plurality, slip op. at 13. Concurring in judgment, Justice Stevens opines that the standards set forth in the plurality opinion will leave open the question of whether the same three-drug protocol will be held unconstitutional in other circumstances or in other states, and could well lead to a different result on the basis of a more complete record. Stevens Concurrence, slip op. at 1. Justice Stevens specifically opines as to the potential unconstitutionality of the use of pancuronium bromide as a component of the three-drug protocol, and cautions, “States wishing to decrease the risk that future litigation will delay executions or invalidate their protocols would do well to reconsider their continued use of pancuronium bromide.” Stevens Concurrence, slip op. at 8. Justice Stevens then writes that “[t]he time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived,” slip op. at 12, and engages in a detailed examination of the justifications for the death penalty and the arguments regarding its constitutionality. Stevens Concurrence, slip op. at 13-17. After reaching a conclusion that, if the question were properly before the Court, he would find the death penalty itself to be unconstitutional, slip op. at 17, Justice Stevens writes that he is currently constrained by Court precedent to concur in judgment regarding the Kentucky lethal injection protocol. Justice Thomas, with Justice Scalia joining, concurs in the judgment, but writes that he would hold that the proper standard to be applied to the Eighth Amendment analysis of execution methods to be that a method would violate the Eighth Amendment “only if it is deliberately designed to inflict pain.” Thomas Concurrence, slip op. at 1. Justice Breyer concurs in the judgment, writing that the proper standard should be that an execution method violates the Eighth Amendment if it “creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering.” Breyer Concurrence, slip op. at 1. Justice Breyer, however, finds that the record in this case does not support that Kentucky’s use of the three-drug lethal injection protocol meets this standard, and further observes that the constitutionality of the death penalty itself is not before the Court. Justice Ginsburg, joined by Justice Souter, dissents. Justice Ginsburg first formulates the “untoward risk” standard employed in Justice Breyer’s concurrence, slip op. at 4-5, then finds that the record in this case shows that Kentucky’s execution method should be found to be unconstitutional under this standard. Ginsburg Dissent, slip op. at 11.
• Burgess v. U.S. (Ginsburg, J., delivering opinion for unanimous Court). The Controlled Substances Act mandates a 10-year minimum sentence for certain offenses, increasing the minimum for those offenses to 20 years where the defendant has a prior “felony drug offense.” The defendant, upon being convicted under the CSA, and having received a prior conviction under a South Carolina statute that classified his prior possession conviction as a misdemeanor, although it carried a maximum possible sentence of more than one year, was sentenced to a 20-year minimum sentence for his CSA conviction. The Court of Appeals for the Fourth Circuit affirmed. The Supreme Court affirms, holding that the federal statutory definition of “felony drug offense” as including those offenses where the possible maximum sentence exceeded one year governed the CSA’s mandatory minimum provision, regardless of any state statutory classification of the prior offense.
• Begay v. U.S. (Breyer, J., delivering opinion of the Court, joined by Roberts, C.J., and Stevens, Kennedy, and Ginsburg, JJ.; Scalia, J., concurring in judgment; Alito, J., joined by Souter, Thomas, JJ., dissenting). The Armed Career Criminal Act imposes a mandatory 15-year sentence on felons who unlawfully possess a firearm and who have three or more previous convictions for certain drug crimes or violent felonies. On sentencing the petitioner under the ACCA, the district court found that the petitioner’s three prior felony DUIs triggered the mandatory sentencing provision of the Act. The Tenth Circuit Court of Appeals affirmed the sentence. The Supreme Court reversed the judgment of the Tenth Circuit in relevant part and remanded for further proceedings. The Court held that, though drunk driving certainly presents a significant risk of injury and harm to others, it differs from the violent felonies included in the ACCA as examples in the respect that the example crimes involve “purposeful, ‘violent,’ and ‘aggressive’ conduct,” while a DUI is a strict liability crime without regard to whether the DUI was committed with purposeful, violent, or aggressive conduct. Slip op. at 7-8.