The Supreme Court, faced with mounting legal chaos across the country over lethal injection, will hear arguments challenging Kentucky's execution method -- the same procedure favored in virtually every state that has a death penalty. The justices will directly confront the constitutionality of an execution method for the first time since the 1870s, when they upheld Utah's firing squads.
The high court is expected to rule by the end of its term in June, or at the very least devising a road map for what states must do to ensure the executions they carry out are as humane as possible.
On one side, lawyers for death row inmates argue that states have grown so sloppy carrying out executions that they should not resume unless the the Supreme Court establishes strict standards. On the other side, dozens of states, the Bush administration and victims' rights groups insist that Kentucky and other states already do it right.
For legal experts, the tea leaves have never been harder to read. There is only one consensus: the conservative Supreme Court will not abolish the death penalty or outlaw lethal injection.
The question is how far it will go in forcing states to fix perceived problems and whether the justices willspecify what states must do to tinker with the drugs, training and medical safeguards, such as monitoring inmates, during executions. There is agreement that the Supreme Court must clear up a legal mess that has effectively created the first nationwide moratorium on executions since the early 1970s.
"It's very difficult to know whether this court is going to limit itself," said Elisabeth Semel, head of Boalt Hall School of Law's Death Penalty Clinic. As for her prediction, Semel admits, "It depends on which day of the week it is or which brief I've just read."
The Supreme Court stepped into the issue last fall after several years of proliferating legal challenges to lethal injection, all centered on whether the three-drug combination used in most executions exposes inmates to the risk of cruel and unusual punishment. Critics argue that the combination of drugs can mask an inmate's suffering.
Courts throughout the country have issued conflicting rulings, with some states, including California, putting executions on hold. The Kentucky case reached the high court after that state's Supreme Court upheld Kentucky's lethal injection procedures, opening the door for the justices to tackle the issue.
The outcome will have a direct impact on California, where San Jose U.S. District Judge Jeremy Fogel put executions on hold in 2006, concluding that the state's execution process is "broken."
California officials have attempted to address Fogel's concerns, including constructing a new execution chamber at San Quentin.
Twenty states and the federal government, which also uses lethal injection, urged the justices to simply find that Kentucky's method passes legal muster and not micromanage the states. California did not sign onto the brief, but the argument was similar to what the state has argued in the case before Fogel, brought by death row inmate Michael Morales. Fogel has put that case on hold.
"The national consensus could not be more clear: measured by the conduct of state governments, the American people overwhelmingly accept lethal injection by protocol similar or identical to that of Kentucky," the states wrote. "The court should conclude that Kentucky's lethal injection protocol is entirely consistent with modern standards of morality."
Lawyers for death row inmates agree that Kentucky's procedure is similar to other states, but they argue that's why the Supreme Court has to correct widespread flaws.
In one brief filed on behalf of four death row inmates, including Morales, lethal injection critics say states have "turned a blind eye" to the risks of improperly administering the drugs. "The result," they wrote, "has been botched executions that are entirely predictable and preventable."
In another brief, the American Society of Anesthesiologists insisted the current three-drug combination can never meet accepted medical standards, while a group of veterinarians stressed that the drugs do not even meet the standards for putting animals to death.
But legal experts doubt the justices will get too specific about the chemistry involved in executions. Instead, the Supreme Court is expected to give all the judges struggling with these challenges some guidance -- and leave it to the states to come up with death chamber solutions.
Experts say if the justices leave it to the states, there is sure to be more litigation in the future.
"Avoiding true clarity may be the only way they get a majority opinion," said Douglas Berman, an Ohio State University law professor. "I think there will be a 'clearish' standard for lower courts to apply, but that doesn't make things easy. The devil will still be in the details."
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