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ustices Uphold Lethal Injection Procedure
Split Reasoning Opens Door to New Challenges
By Robert Barnes
Washington Post Staff Writer
Thursday, April 17, 2008; A01
The Supreme Court ruled yesterday that the most common method of lethal
injection used to execute condemned prisoners is constitutional, a decision
sure to restart the nation's dormant death chambers. But the court's
splintered reasoning seems likely to result in more challenges to the way
capital punishment is administered in the United States.
In a 7 to 2 vote, the justices said the three-drug combination used by
Kentucky, similar to that used by the federal government and 34 other
states, does not carry a risk of substantial pain so great as to violate the
Constitution's ban on cruel and unusual punishment.
"Simply because an execution method may result in pain, either by accident
or as an inescapable consequence of death, does not establish the sort of
'objectively intolerable risk of harm' that qualifies as cruel and unusual,"
wrote Chief Justice John G. Roberts Jr.
The decision's most likely immediate effect is to dissolve the de facto
moratorium on executions that has taken root since the court announced in
September that it would decide the case, Baze v. Rees. Just hours after
yesterday's decision was announced, Virginia Gov. Timothy M. Kaine (D)
lifted the hold he had placed on capital punishment.
But commentators as diverse as Amnesty International and Justice Clarence
Thomas predicted that the divided court's decision is, in Thomas's words,
"sure to engender more litigation."
"I assumed that our decision would bring the debate about lethal injection
as a method of execution to a close," wrote Justice John Paul Stevens, who
used the occasion to announce that his 33-year tenure on the court has led
him to believe that capital punishment is unconstitutional. "It now seems
clear that it will not."
That is because even though seven justices -- including Stevens, who said
the court's precedents required his consent -- found Kentucky's procedures
constitutional, a majority could not agree on the proper standard with which
to judge execution practices.
Roberts said they should be examined to determine whether they pose a
"substantial risk of serious harm," rather than the "unnecessary risk"
proposed by lawyers for two men on Kentucky's death row.
But only Justices Anthony M. Kennedy and Samuel A. Alito Jr. agreed with
him.
Thomas, joined by Justice Antonin Scalia, rejected that test and said a
method of execution violates the Eighth Amendment's prohibition on cruel and
unusual punishment "only if it is deliberately designed to inflict pain."
Justice Stephen G. Breyer agreed with Stevens in saying Kentucky's process
meets the court's standards, but he said he disagrees with Roberts's test as
well.
Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, dissented,
saying execution methods must not create an "untoward, readily avoidable
risk of inflicting severe and unnecessary pain." She said she could not be
sure Kentucky had taken all necessary safeguards.
In all, seven of the nine justices wrote to explain their decisions.
It was a somewhat fitting exercise for a court that spends much of its time
on capital punishment, even as the number of death sentences imposed
nationally continues to fall. After issuing the decision yesterday in Baze,
the justices heard arguments in Louisiana's attempt to execute a man for
raping his 8-year-old stepdaughter.
The court held in 1977 that it is a violation of the Eighth Amendment to
execute someone who raped an adult woman. But Louisiana and four other
states have passed laws saying capital punishment for rape of a child is
different.
Louisiana's death row contains two men convicted of the offense; they are
the only people among more than 3,300 awaiting execution nationwide whose
crimes did not include homicide.
The justices by their questioning again seemed split, with Roberts and
Scalia appearing sympathetic to Louisiana. Kennedy wondered whether it might
be necessary that the convicted be a repeat offender, something that
Louisiana does not require but other states do.
In the Baze case, the justices considered conflicting lower-court opinions
on lethal injection. At least 30 states, including Kentucky, use the same
combination of three drugs: sodium thiopental, which induces
unconsciousness; pancuronium bromide, which paralyzes the muscles; and
potassium chloride, which causes cardiac arrest.
An attorney for the petitioners, who were backed by other death row inmates
around the country, argued that if the first drug does not work, the second
induces a "terrifying, conscious paralysis" and the third causes an
"excruciating burning pain as it courses through the veins."
The petitioners were two Kentucky inmates sentenced to death for murders
committed in the 1990s. One of them, Ralph Baze, was convicted of shooting a
sheriff and a deputy sheriff when they tried to serve felony warrants on him
in 1992. The other, Thomas C. Bowling, fatally shot a couple and wounded
their 2-year-old son as they sat in their car in a parking lot after Bowling
ran into their vehicle with his.
The Kentucky inmates were not asking to be spared execution or injection.
Rather, they wanted the court to order the state to switch to a single,
massive dose of barbiturates -- the same method used to euthanize animals.
But Roberts said that "a condemned prisoner cannot successfully challenge a
state's method of execution merely by showing a slightly or marginally safer
alternative."
Instead, he must show an alternative procedure that would be "feasible,
readily implemented and in fact significantly reduces a substantial risk of
severe pain," Roberts wrote.
That is the test that Stevens and Thomas said could open the door to more
challenges. Elisabeth Semel, director of the Death Penalty Clinic at the
University of California at Berkeley law school, said that in Tennessee,
where executions were halted by a federal judge, evidence of alternative
methods already exists.
The headline on a statement from the clinic showed how death penalty
opponents view the decision: "Nationwide Lethal Injection Challenges to Move
Forward."
Roberts sought to head off such interpretations.
"A state with a lethal injection protocol substantially similar to the
protocol we uphold today would not create a risk" that would be
unconstitutional, he wrote.
In Virginia, the court's decision clears the way for several executions
unless Kaine intervenes based on clemency requests. Kevin Green, who killed
a south-central Virginia convenience store owner in 1998, is scheduled to be
executed May 27, according to the state attorney general's office.
Maryland's highest court ruled in December 2006 that the state's lethal
injection procedures had not been properly adopted.
Republican leaders yesterday called on Gov. Martin O'Malley (D) to issue
regulations needed to allow executions to resume. But O'Malley, a death
penalty opponent, noted that the General Assembly has approved a commission
to study the effectiveness of the death penalty as a deterrent and the costs
associated with it.
Staff writers William Branigin, Tim Craig and John Wagner contributed to
this report.
http://www.washingtonpost.com/wp-dyn/content/article/2008/04/16/AR20080
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