Court Rules for Kentucky on Executions

http://www.nytimes.com/2006/11/23/us/23kentucky.html?_r=1&ref=us&oref=slogin

Court Rules for Kentucky on Executions

By ADAM LIPTAK

Published: November 23, 2006

While conceding that the chemicals used to execute death row inmates in Kentucky might cause needless pain, the state’s Supreme Court ruled yesterday that using them did not violate the Constitution’s prohibition on cruel and unusual punishment.

“Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain,” Justice Donald C. Wintersheimer wrote for the unanimous court. “The prohibition is against cruel and unusual punishment and does not require a complete absence of pain.”
The lawyers for the two inmates who brought the challenge, like lawyers in scores of other cases around the country, had presented evidence that the three chemicals used in lethal injections had the potential to produce excruciating pain.

Thirty-seven states and the federal government execute condemned prisoners by injection. A federal judge in California will soon decide a challenge to that state’s lethal injection protocol, and Deborah W. Denno, a Fordham law professor and expert on execution methods, said similar litigation was pending in nearly all those states.

The states’ protocols vary slightly, but almost all call for a series of three chemicals. The first is a barbiturate meant to render the inmate unconscious. The second is a paralyzing agent that makes the inmate unable to speak, move or breathe. The third is potassium chloride, which stops the heart.

Veterinarians, by contrast, use a single large dose of barbiturate to euthanize animals.

Lawyers for the Kentucky inmates, Ralph Baze and Thomas C. Bowling, relied on interpretation of autopsy records from the last execution in the state, that of Edward L. Harper in 1999. The lawyers said the drug meant to make Mr. Harper unconscious had not worked, meaning the two other drugs had subjected him first to smothering and then to searing pain while he was awake but unable to cry out.

But the justices’ decision yesterday said Corrections Department personnel present at Mr. Harper’s execution disputed that he had suffered.

“Harper went to sleep within 15 seconds to one minute from the moment that the warden began the execution,” Justice Wintersheimer wrote, “and never moved or exhibited any pain whatsoever subsequent to losing consciousness.”

Professor Denno, who testified on behalf of the inmates, said the court’s opinion was flawed. She said it did cite the correct constitutional standard, which bars punishments that create a substantial risk of wanton and unnecessary infliction of pain. But because the decision, in an apparent allusion to veterinary euthanasia, acknowledged that “there are other drugs which may further assure the condemned person feels no pain,” the court’s own reasoning should have required a contrary ruling, she said.

In a statement, Attorney General Greg D. Stumbo said he was pleased that the executions could now proceed.

“We have moved the process forward,” Mr. Stumbo said, “and at the appropriate time will seek a warrant for execution from the governor.”

David M. Barron, a lawyer for the inmates, said the justices had failed to address his clients’ claims in detail. He said he would seek reconsideration and, if necessary, review by the United States Supreme Court.

National Briefing South: Kentucky: Medical Board Dismisses Complaint Against Governor (January 14, 2005)
Governor's Role in Execution Raises Medical Issue (November 20, 2004)
On Death Row, a Battle Over the Fatal Cocktail (September 16, 2004)
Justices Let Stand Ruling That Allows Forcibly Drugging an Inmate Before Execution (October 7, 2003)


Capital Punishment
Kentucky
Supreme Court
Prisons and Prisoners