Court divides over lethal injection case
WASHINGTON (AP) - January 7, 2008 With executions in the United States halted since late
September, the court heard arguments in a case from Kentucky that
calls into question the mix of three drugs used in most executions.
Justice Antonin Scalia was among several conservatives on the
court who suggested he would uphold Kentucky's method of execution
and allow capital punishment to resume.
States have been careful to adopt procedures that do not seek to
inflict pain and should not be barred from carrying out executions
even if prison officials sometimes make mistakes in administering
drugs, Scalia said. "There is no painless requirement" in the
Constitution, Scalia said.
But other justices said they are troubled by the procedure in
which three drugs are administered in succession to knock out,
paralyze and kill prisoners. The argument against the three-drug
protocol is that if the initial anesthetic does not take hold, a
third drug that stops the heart can cause excruciating pain. The
second drug, meanwhile, paralyzes the prisoner, rendering him
unable to express his discomfort.
"I'm terribly troubled by the fact that the second drug seems
to cause all risk of excruciating pain," Justice John Paul Stevens
said.
Both sides in the case said they are bothered by the seemingly
endless series of death penalty cases that come to the court.
Justice David Souter urged his colleagues to take the time
necessary to issue a definitive decision about the three-drug
method in this case, even if it means sending the case back to
Kentucky for more study by courts there.
Scalia, however, said such a move would mean "a national
cessation of executions. We're looking at years. We wouldn't want
that to happen."
Kentucky, backed by the Bush administration, says it works hard
to execute inmates humanely, countering claims that its procedure
violates the 8th Amendment ban on cruel and unusual punishment.
But Donald Verrilli, a Washington lawyer who is a veteran of
capital cases, told the justices that problems with executions in
California, North Carolina and other states show that the
three-drug procedure should be scrapped or thoroughly revamped.
"The risk here is real. That is why it is unlawful to euthanize
animals the way Kentucky executes inmates," Verrilli said.
Kentucky bars the use of the paralytic on animals. An overdose of
barbiturates is commonly used on animals.
Verrilli suggested a similar method be adopted in Kentucky.
But Roy Englert, arguing for the state, said a single drug has
never been used in executions.
By contrast, he said, Kentucky regularly trains its execution
team and employs an experienced worker to insert the intravenous
lines through which the drugs are administered.
Recent executions in Florida and Ohio took much longer than
usual, with strong indications that the prisoners suffered severe
pain in the process. Workers had trouble inserting the IV lines
that are used to deliver the drugs.
Lined up in front of the court waiting to attend the arguments,
college students Jeremy Sperling and Gira Joshi said they oppose
the death penalty, but regard making executions less painful and
more humane as a worthy goal.
"You have the right to die with dignity," said Joshi, a
political science and religion major at New Jersey's Rutgers
University. Sperling, a psychology and religion major at New York
University, said serving a life prison term is the appropriate
alternative to the death penalty.
The case is Baze v. Rees, 07-5439.