Justices are not ready to bar lethal injections just yet

By Greg Stohr, Bloomberg News | January 8, 2008

WASHINGTON - US Supreme Court justices suggested they aren't ready to bar the nation's three-drug lethal- injection method, with several saying they lacked adequate information about the risk of suffering by condemned inmates.

The court yesterday considered contentions by two Kentucky inmates that the method, used by 35 states as well as the federal government, violates the constitutional ban on cruel and unusual punishment.

The inmates' appeal seeks abandonment of the drug combination that has been used in almost 1,000 lethal injections and is now virtually the exclusive US execution method.

Several members of the court's liberal wing, while voicing concerns about the method, suggested they weren't prepared to outlaw it without more evidence. Justice Stephen Breyer said he was "left at sea" by the lack of information developed in the case record about other possible execution methods.

"You claim that this is somehow more painful than some other method," Breyer said to the inmates' lawyer. "But which, and what's the evidence for that?"

The court has never declared a method of execution unconstitutional, permitting the electric chair in 1890 and firing squads in 1878.

The case already has led to a halt on executions nationwide while the justices consider the issue. They are likely to rule by the end of June.

Under the three-drug method, inmates are injected with sodium pentothal, an anesthetic, followed by pancuronium bromide, which shuts down the lungs and paralyzes the body.

The final chemical, potassium chloride, induces a fatal heart attack. The method is used by 35 states and the federal government.

The danger, critics say, is that the first chemical might not render the inmate unconscious.

"The second drug, pancuronium, will induce a terrifying conscious paralysis and the third drug, potassium chloride, will inflict an excruciating, burning pain as it courses through the veins," argued the inmates' lawyer, Donald Verrilli.

He said the risk could be reduced by using only a single, larger dose of a barbiturate.

The inmates point to executions in Ohio, Florida, California, and Missouri in which condemned men allegedly didn't receive an adequate dosage of pentothal and showed signs of consciousness and pain.

Kentucky officials say they have safeguards to ensure an inmate receives the proper dosage.

Among other requirements, the execution team participates in 10 annual practice sessions that include insertion of an intravenous needle into a volunteer.

The person who places the IV is a phlebotomist, a specialist who typically places 30 needles a day in prisoners, argued the state's lawyer, Roy Englert.

Justice John Paul Stevens, whose vote the inmates almost certainly will need to win the case, acknowledged that Englert had made "a very strong case on the administration in Kentucky on the record in this case."

At the same time, Stevens said he was "terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain and seems to be almost totally unnecessary in terms of any rational basis for a requirement."