HEARST NEWSPAPERS
The future of the death penalty will be in the hands of the Supreme Court tomorrow when the justices hear arguments in a closely watched case that tests the constitutionality of execution by lethal injection.
The case, brought by two death-row inmates in Kentucky who are challenging the three-drug cocktail used to kill prisoners, already has led Texas — the nation’s leader in executions — and other states to halt executions until the high court decides the Kentucky case.
When Oklahoma first authorized lethal injection in 1977 — a year after the Supreme Court ruled that capital punishment was constitutional and reinstated the death penalty — the drug-induced death was seen as the most humane means of executing prisoners.
But lethal injection is now under mounting scrutiny nationwide. Even before the Supreme Court’s decision in September to hear the Kentucky case, states were convening panels to study the technique because of concerns that it could inflict excruciating pain on the condemned.
At issue is the precise combination of the three drugs used in the 29 states that use them. Generally, prisoners are first administered a fast-acting anesthesia known as sodium thiopental — or pentothal — followed by the paralytic pancuronium bromide, which does not block pain but prevents voluntary muscle movement. Finally, they are injected with potassium chloride, which stops the heart from beating.
Lawyers on both sides of the Kentucky case agree that if the drugs are administered properly — and the anesthesia sodium thiopental works correctly — a prisoner’s death would be painless. They also agree that without a sufficient supply of the anesthetic, potassium chloride could cause horrific burning pain. An inmate paralyzed by the second drug — the pancuronium bromide — would be unable to alert anyone that the anesthesia wasn’t working.
“It is undisputed that a condemned prisoner injected with pancuronium and potassium will suffer torturous pain and agonizing death if the prisoner has not been properly anesthetized,” said Donald Verrilli, who will represent the Kentucky prisoners in court tomorrow.
The two men challenging Kentucky’s lethal-injection program have both been convicted of murder. Thomas Bowling was found guilty of fatally shooting a couple sitting in their car outside a Lexington, Ky., dry-cleaning business. Ralph Baze was found guilty of fatally shooting a deputy sheriff trying to serve him with a warrant.
The two inmates filed a lawsuit in 2004 arguing that Kentucky’s lethal-injection protocol constituted cruel and unusual punishment that is banned by the Eighth Amendment.
A state trial court ruled against them, concluding that the inmates had not proved the three-drug cocktail would inflict “unnecessary physical pain.” The trial court found that the Eighth Amendment does not protect prisoners “against all pain — only cruel and unusual pain.”
The inmates lost an appeal to the Kentucky Supreme Court, which unanimously found that lethal injection did not violate the ban on cruel and unusual punishment because it did not create a “substantial risk of wanton and unnecessary infliction of pain.”
Bowling and Baze’s attorneys argue to the U.S. Supreme Court that Kentucky’s system poses a “significant likelihood of improper administration of the anesthesia.”
“Botched” executions are “inevitable,” they say, because “execution personnel are required to perform complicated tasks for which they have no expertise or training.”
Physicians are barred from helping or witnessing executions under the ethical guidelines of the American Medical Association.
In legal briefs filed with the court, Kentucky’s lawyers — joined by Texas and the Bush administration and 19 other states — defend lethal injection as humane.
Kentucky argues that the state has voluntarily modified its lethal-injection protocol to make it more humane by increasing the amount of anesthetic to help ensure inmates are not conscious during their executions.
Solicitor General Paul Clement, who will represent the U.S. government in arguing on behalf of Kentucky, warned the high court in a legal brief that siding with the inmates could require states to constantly choose “between an old and new method of execution as soon as each new method became available” to ensure they are always using the most humane and pain-free execution method.
The high court has never ruled that a particular method of execution violates the Eighth Amendment.
In this case, the court will partly be deliberating over the legal standard courts should apply when determining whether lethal injection and other execution methods violate the Eighth Amendment. Specifically, they will be considering whether the Eighth Amendment bars execution methods that create an “unnecessary risk of pain and suffering” or just those methods that pose a “substantial risk of the wanton infliction of pain” — and whether lethal injection qualifies.
Please read our comment policy before commenting.