WASHINGTON (ABP) — The Supreme Court, which is poised to decide if the nation's most widely used form of capital punishment is unconstitutional, seemed preoccupied with the mechanics of lethal injection during arguments in the case Jan. 7.
The justices also seemed concerned that the case they're using to decide if lethal injection is the kind of “cruel and unusual punishment” banned by the Eighth Amendment isn't the best vehicle for such a determination.
“Isn't your position that every form of execution that has ever been used in the United States, if it were to be used today, would violate the Eighth Amendment?” asked Justice Samuel Alito, one of the court's two newest members, addressing Washington attorney Donald Verrilli.
Verrilli argued on behalf of two inmates from Kentucky's death row who sued, contending the state's method of execution poses a risk that the condemned will suffer, consciously and silently, after being injected with a drug that paralyzes them.
Alito and the other newest member, Chief Justice John Roberts, appeared to favor the other side's argument. The commonwealth of Kentucky, attorney Roy Englert argued, has sufficient protocols to ensure that the injection procedure is done without any suffering to the condemned.
“Contrary to what Mr. Verrilli has suggested, Kentucky has excellent safeguards in place,” Englert told the justices.
At question is a three-drug protocol used to induce death. The procedure — a form of which is used by virtually every state that enforces the death penalty — first involves a general anesthetic. Then, a second drug paralyzes the prisoner to prevent convulsions. The final drug induces a heart attack.
However, if an inmate is insufficiently anesthetized during the first injection, they could be left partially or fully conscious but unable to speak or move while experiencing excruciating pain induced by the final drug.
Most states began switching from other forms of execution — such as hanging and the electric chair — to lethal injection during the middle part of the 20th century. The Supreme Court last answered the question of whether a particular execution procedure violated the Eighth Amendment in 1890, when it approved electrocution.
Kentucky law bans the three-drug procedure for euthanizing animals, favoring a single dose of barbiturates that anesthetizes and induces death simultaneously. A group of veterinarians joined the inmates' side in the case, arguing that what is considered inhumane for animals should not be used on humans.
Justices Stephen Breyer and David Souter seemed to favor sending the case back to Kentucky courts to study whether an alternative exists. But even Breyer — one of the court's most liberal members — acknowledged that the barbiturate-injection method could pose its own problems.
Noting a Dutch study that questioned the effectiveness of barbiturates in physician-assisted suicide, he asked Verrilli, “Is there more problem here than with other execution methods?”
Opponents of capital punishment had hoped the case could end lethal injections. The court has already placed an effective moratorium on such executions until it decides this case.
Justice Antonin Scalia, a staunch death-penalty supporter, said sending the case back to the state courts would simply further delay a verdict.
“I'm very reluctant to send it back to the trial court so we can have a nationwide cessation of all executions while the trial court finishes its work and then it goes to another appeal to the state supreme court and ultimately, well, it could take years,” Scalia told Verrilli.
The case in question concerns whether Kentucky's procedure is sufficient to prevent the state from executing prisoners in an unconstitutional fashion. One of the court's staunchest death-penalty opponents acknowledged that whether a better procedure exists is not a question currently put before the justices.
“So if we just decide this on the ground — and the record is very persuasive in your favor, I have to acknowledge — but if we decide the fact that Kentucky is doing an adequate job of administering this protocol, that would leave open the question whether the basic use of this second drug, which does nothing but avoid [un]pleasantness [for] visitors, is in fact unconstitutional,” Justice John Paul Stevens said to Englert.
The case is Baze v. Rees, No. 07-5439. The court is expected to hand down a decision before its current term ends this summer.
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