Cruel and Unusual?
The Bifurcation of Eighth Amendment Inquiries
After Baze v. Rees
Mark B. Samburg*
I.
INTRODUCTION
In Louisville, Kentucky, on May 3, 2008, thoroughbred racing filly
Eight Belles sustained compound fractures in both of her front ankles after
running a close second behind new Kentucky Derby champion Big Brown.1
In the moments after she fell to the track, the on-site veterinary team
euthanized her, recognizing that her injuries were far too severe to attempt
any sort of treatment.2 Although precise information is not publicly availa-
ble, it is likely that Eight Belles was killed by a single large dose of a barbit-
urate, ensuring a quick and painless death.3 Veterinarians can state with
complete confidence that Eight Belles did not suffer any pain whatsoever in
her death,4 but no such assurances can be made in the case of convicted
criminals executed in accordance with execution protocols like Kentucky’s.
It is due to the risk of pain that pancuronium bromide, the second drug ad-
ministered in Kentucky’s execution protocol, is illegal for use in animal eu-
thanasia in at least twenty-three states—including Kentucky.5
In 1977, Oklahoma became the first state to adopt lethal injection as its
method of execution, codifying a three-drug sequence still in use in various
forms throughout the United States—including in Kentucky.6 As of this
writing, however, the only person actually executed in Kentucky under the
state’s lethal injection protocol was Edward Lee Harper, executed on May
25, 1999 for a 1982 double murder.7 Kentucky law requires corrections offi-
* J.D. Candidate, Class of 2010, Harvard Law School; B.A., Brandeis University, 2007.
1 Associated Press, Favorite Big Brown Dusts Field; Runner-Up Eight Belles Euthanized,
ESPN.COM, May 4, 2008, http://sports.espn.go.com/sports/horse/news/story?id=3380081.
2 Id.
3 AM. VET. MED. ASS’N, AVMA Guidelines on Euthanasia 18 (2007), available at http://
www.avma.org/issues/animal_welfare/euthanasia.pdf. As described in the AVMA report, it is
also po