High court to weigh in on lethal injection

Death Penalty

---

High court to weigh in on lethal injection By By Joan Biskupic Jan 4, 2008, 07:50

High court to weigh in on lethal injection

HOW LETHAL INJECTION WORKS

Lethal injection was introduced in the late 1970s as an alternative to execution methods such as electrocution, hanging and firing squad. Kentucky's method, similar to that used in other states, involves three drugs given in this order:

Sodium thiopental -- intended to render the prisoner unconscious;

Pancuronium bromide -- a muscle relaxant that stops involuntary reactions;

Potassium chloride -- which stops the heart and causes death.

The Kentucky prisoners whose appeal will be heard Monday say the three-drug mix can leave a person feeling excruciating pain, but frozen and unable to express his suffering. They say other chemicals could reduce the risk of pain.

The key question before the Supreme Court is whether the Eighth Amendment prohibition on cruel and unusual punishment bans execution methods that create an "unnecessary risk of pain and suffering" or only methods that create "a substantial risk of the wanton infliction of pain."

The justices will also weigh whether states must consider drug alternatives that pose less risk of pain and suffering.

By Joan Biskupic, USA TODAY
WASHINGTON — The Supreme Court will hear arguments Monday on whether a common lethal injection method is unconstitutional. The case, which has prompted a temporary halt in executions, comes at a crucial time for capital punishment nationwide.
The dispute from Kentucky tests standards for when a method of execution is cruel and unusual punishment under the Eighth Amendment. Although the basic constitutionality of capital punishment is not at issue, the case has galvanized larger questions about the death penalty.

Executions in 2007 dropped to a 13-year low of 42, largely because states began putting executions on hold soon after the justices announced they would hear the Kentucky case. Thirty-five of the 36 states that permit capital punishment carry out executions with a lethal drug combination.

In 2007, 110 defendants were sentenced to die, the lowest number since the death penalty was reinstated in 1976, according to the Death Penalty Information Center. At the end of 2007, New Jersey became the first state to pass a law abolishing the death penalty in more than 40 years.

The tenor of the national debate over capital punishment has shifted dramatically. In the 1990s, the federal government and states worked to expand the crimes that qualified for the ultimate punishment and to limit prisoner appeals of sentences.

FIND MORE STORIES IN: Supreme Court | Kentucky | Human Rights Watch | Eighth Amendment | Ralph Baze | David Barron
Then, in the late 1990s, new concerns about potentially innocent death row inmates began to emerge because of DNA testing. In the early 2000s, the Supreme Court began looking more closely at problems in the system and threw out some death sentences based on concerns about defense lawyers' competence. The justices also invalidated death sentences for mentally retarded defendants and for offenders who were younger than 18 at the time of their crimes.

'Unprecedented' scrutiny

Death penalty critics hope that the new case, which revolves around a particular three-drug lethal injection, provokes a larger examination of capital punishment. The current de facto moratorium on executions is the first since the Supreme Court reinstated the death penalty.

"When people aren't rushing to execute, there is more opportunity for debate on the death penalty generally," says Deborah Denno, a Fordham University law professor who has tracked capital punishment and supports the prisoners who say the lethal injection mix causes unnecessary suffering. "The heightened scrutiny is unprecedented. There is less trust now in departments of corrections and what happens" during injections.

Numerous challenges to lethal injection are pending nationwide. Many, like the Kentucky case, focus on the drugs used, but some also allege that unqualified execution teams can botch the procedure.

Some state officials want no slowdown on death row. A group of 20 states — led by Texas, the top death penalty state — is backing Kentucky in defense of its lethal drug combination.

If the prisoners' challenge succeeds, Texas Solicitor General Ted Cruz wrote, the ruling would "profoundly impact the administration of criminal justice. … Lethal-injection procedures used throughout the country would likely have to be substantially revised."

The condemned prisoners whose appeal is before the justices are Ralph Baze, who in 1992 murdered a sheriff and his deputy, and Thomas Bowling, who in 1990 shot and killed a couple and wounded their 2-year-old son after crashing into the family's car.

Kentucky's mix involves thiopental, intended to make the prisoner unconscious; pancuronium, to prevent muscle reactions; and potassium, which stops the heart.

David Barron, an assistant public advocate representing Baze and Bowling, contends that although states chose the injection method as part of a "continuing quest to find a more humane means of killing," it is actually "less humane than intended."

He says prisoners may suffer torturous pain and agonizing death if not properly anesthetized but will appear serene and unable to alert anyone to their pain.

In his written brief, Barron told the justices that the method has "led directly to botched executions."

He cites Florida's 2006 execution of Angel Diaz, who seemed to receive an inadequate dose of thiopental and began gasping during an ordeal that lasted 34 minutes — more than twice as long as a typical execution.

Barron urged the court to rule that the Eighth Amendment is violated when an execution method creates "a significant and unnecessary risk of … pain that could be prevented" with safeguards.

Kentucky officials say inmates should have to show "a substantial risk" of suffering to successfully challenge an execution method.

Animals treated better?

State lawyer Jeffrey Middendorf, who argued the case against the prisoners in lower court, tells the justices in his brief that under the prisoners' approach, any method "that does not minimize the risk" of pain could be unconstitutional. Kentucky's stance, backed by the U.S. Justice Department, generally would require no further examination into what happens during lethal injections.

Under the prisoners' approach, states likely would have to further research the drugs' effects.

Lawyers for the New York-based Human Rights Watch, siding with the prisoners, say that though lethal injection "evokes the euphemistic 'putting to sleep' characterization of animal euthanasia … the reality is considerably less predictable and, at times … torture."

Also backing the prisoners are a group of physicians and clinical ethicists who say pancuronium can mask the physical signs of pain and a group of veterinarians who say Kentucky's mix would not meet the minimum standards for the humane euthanasia of animals.

Death penalty supporters dispute the uncertainty of the chemicals' effect and urge the court to rule with a definiteness that allows executions to resume.

Kent Scheidegger of the Sacramento-based Criminal Justice Legal Foundation told the justices, "This case should be decided in a way that brings this chapter to a close, not in a way that creates a moving target for a permanent new round of litigation in capital cases."

http://www.usatoday.com/news/washington/2008-01-03-court_N.htm?csp=34