KY Supreme Court Upholds Lethal Injection

http://www.bluegrassreport.org/bluegrass_politics/2006/11/ky_supreme_cour.html

Wednesday, November 22, 2006

KY Supreme Court Upholds Lethal Injection

Newsworthy ruling issued today by the Kentucky Supreme Court upholding the constitutionality of the state's lethal injection method of execution:

The Kentucky Supreme Court has ruled that the state's lethal injection method is constitutional, possibly clearing the way for at least two inmates to be executed.

Kentucky Death Row inmates, Thomas Clyde Bowling, 52, and Ralph Baze, 49, challenged the state's method of executing condemned prisoners, saying the drug formula used amounts to cruel and unusual punishment.

The ruling handed down Wednesday in Frankfort affirms a prior ruling in Franklin Circuit Court.

Judge Roger Crittenden made no errors in upholding Kentucky's lethal injection method after a lengthy trial in 2005, Justice Donald C. Wintersheimer wrote in the unanimous opinion.

Click here for the Court's 10-page ruling.

Also, neither McAnulty or Roach heard the case and were instead replaced by "Special Justices Adams and Revell." Anyone know who they are? Just curious.

UPDATE: Because I was curious, I looked up the executive order on this appointment at the Secretary of State's website. The two special justices are Richard A. Revell and John R. Adams.

These appointments are noteworthy in that a quick check will find them to be experienced retired judges (Adams a former Fayette Circuit judge and Revell spent 30 years on the bench in Louisville) and neither are campaign contributors to Governor Fletcher. In essence, these are two very qualified jurists and ones without any apparent conflicts of interest.

Isn't it interesting that Fletcher can do the right thing with these appointments but was only able to find two campaign contributors to sit as special justices in his own criminal appeal before the Supreme Court?
Doesn't that tell you everything you need to know about this administration?

UPDATE #2: The Court lays out in its opinion how lethal injection is administered here in Kentucky. It's pretty sobering and thought I'd post the details of that process. (Note: I continue to be mostly pro-capital punishment, but have real (and growing) concerns having to do with the fairness of the application and the obvious concern of irreversible error, not to mention the moral issue of such state-sanctioned action):

IV. Lethal Injection as a Method of Execution
We have previously examined lethal injection as a method of execution and held it did not violate the constitutional standards prohibiting cruel and unusual punishment. Wheeler v. Commonwealth, 121 S .W.3d 173 (Ky. 2003). We have no reason to depart from the position set out in that case. The protocol for lethal injection execution begins with the availability of a therapeutic dose of diazepam if it is requested. Diazepam, commonly referred to as Valium, is an anti-anxiety agent used primarily for the relief of anxiety and associated nervousness and tension. Certified phlebotomists and emergency medical technicians are allowed up to an hour to then insert the appropriate needles into the arm, hand, leg or foot of the inmate.

Three grams of sodium thiopental, commonly referred to as Sodium Pentathol, are then injected. This drug is a fast acting barbiturate that renders the inmate unconscious. At this level of ingestion the person is rendered unconscious for hours.The line is then flushed with 25 milligrams of a saline solution to prevent adverse interaction between the drugs.

Fifty milligrams of pancuronium bromide, commonly referred to as Pavulon, follows. This drug causes paralysis. The purpose is to suspend muscular movement and to stop respiration or breathing. The line is again flushed with 25 milligrams of a saline solution to again prevent any adverse interaction between the drugs
.
Finally, 240 milligrams of potassium chloride is injected. This chemical disrupts the electrical signals required for regular heart beat and results in cardiac arrest. An electrocardiogram verifies the cessation of heart activity. A doctor and a coroner then verify the cause of death.

...The use of three grams of sodium thiopental, commonly referred to as Sodium Pentathol, renders the condemned unconscious. The prohibition is against cruel punishment and does not require a complete absence of pain. Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain.

Posted by Mark Nickolas on Wednesday, November 22, 2006 at 12:13 PM in Legal/Courts Permalink

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Judge Richard Revell was a very well respected judge in Jefferson County. He had a long and very well regarded tenure on the Circuit Court bench. He then oversaw the creation of Family Court in Jefferson County and was regarded as a truly outstanding judge in that area. In fact the book on Kentucky domestic relations law that most lawyers rely upon was authored by Judge Revell.

Posted by: Wednesday, November 22, 2006 at 02:18 PM
Can you post a link to the text of the actual opinion rendered by the court? Thank you.

Posted by: Wednesday, November 22, 2006 at 02:19 PM
"Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain." That's the operative concession here, but it ain't the only one that ought to be stated. There is NO conflict in the science that tells us that many people who are injected with this combination of drugs will remain conscious throughout, but will be paralyzed in ALL muscle action, unable to breathe, unable to move, unable to cry out (or even unable to ask forgiveness of their Lord, something you Christian readers should seriously think about), unable to indicate that something has gone wrong, that the drugs aren't working as they are supposed to work. What that means is that the Government cannot rule out that the men and women who are being executed suffer the horrifying and excruciatingly painful experience of asphyxiation before the last drug, the potassium chloride, puts them down, that they go through the execution process fully conscious, wide awake, but locked and frozen inside their bodies. Can you imagine a more terrifying way to face eternity? How bad do we want to make it in our attempt to humanize an elementary dehumanizing process? There is no good science that confirms that the sodium pentathol dosages used in Kentucky actually render the poor bastards unconscious. We shake our heads and bemoan that our country is using'waterboarding' as torture, but continue with the other barbarous nations in the world to kill our own citizens by means that good science tell us is equally inhumane. We've committed ourselves to trying to make the executions painless, else why give the Valium and the sodium pentathol in the first place? The truth is that those drugs are not there to make the prisoner feel less pain, they're there to make US feel less pain. What lessons are we really teaching here? Well, one lesson is that there are indeed circumstances where killing a fellow human being in rational and designed intentional cold blood is an acceptable societal response to something we believe to be bad enough to justify it. It's counter intuitive to kill to stop killing, and there's no way around it. The numbers show that executions don't deter criminal killings, but instead dehumanize all of us, and are concurrent with a rise in those non-governmental killings. Govt sponsored killing sponsors non-govt killings. I don't want to be a part of this, and know in my heart that someday this anacronism will end. Someday, our progeny will look back on this horror and ask us how we could have allowed it, just as we might now ask our ancestors why they didn't do more to stop the injustices of the gross racial discrimination in their times. And we won't have an answer for them. Me? I want to be able to say "I did everything I could think of to stop it." Don't you? HB.

Posted by: Holler Boy Wednesday, November 22, 2006 at 02:22 PM
Holler Boy, would you prefer the guilliotine? It is quick and painless.
Posted by: Wednesday, November 22, 2006 at 02:30 PM
"It's counter intuitive to kill to stop killing, and there's no way around it."
False.
"The numbers show that executions don't deter criminal killings, but instead dehumanize all of us, and are concurrent with a rise in those non-governmental killings."
Also false.
I'm sure you'll find some left-wing prisoners' rights group claiming they have data to back you up on that second one. Find a credible source and a credible way to measure deterrence and maybe I'll listen.
Posted by: Wednesday, November 22, 2006 at 02:32 PM
What do we say when it is too late to say Oops?
Posted by: kentondem Wednesday, November 22, 2006 at 02:33 PM
Hey, Folks, I knew I was posting something many wouldn't support, that there would be posts in honest disagreement, and that's ok. Nevertheless, I believe executions are wrong for lots of different reasons, and it needs to be said. But no matter where you fall on the spectrum of this political and human rights issue, it ain't a matter for sick jokes and unfeeling humor. Can't we discuss this without trying to provoke laughter at such a horrifying (by anybody's measure) experience? Attempts at humor in this circumstance is just callous and uncaring to all of us who are members of this human family, on either side of the fence. HB.
Posted by: Holler Boy Wednesday, November 22, 2006 at 02:47 PM
"What do we say when it is too late to say Oops?"
Do you mean after some criminal has killed someone and regrets it only because they got caught?
Maybe should say to them "you're going to spend the rest of your life in prison, and die of natural causes if you're lucky" instead of "it is a travesty that you won't be able to vote or serve on juries after you're convicted and paroled and put back on the street while your victim is still in her grave".
Posted by: Wednesday, November 22, 2006 at 02:48 PM
No, that is not what I meant. What do you say to an innocent person after you have killed them?
Posted by: kentondem Wednesday, November 22, 2006 at 02:55 PM
Holler Boy, it wasn't an attempt at humor. Try to give the question an honest answer, and think it through.
If you really are concerned that the drugs given to the condemned before execution don't prevent them from feeling pain and you think that this is wrong, would you not prefer a quick and painless method of death? The guilliotine was such a way. So is the use of a firing squad. That is how the state of Utah put murderer Gary Gilmore to death, and also murderer John Albert Taylor in 1996. Idaho and Oklahoma both allow execution by firing squad for condemned inmates.
Do you really take issue with whether the drugs deaden the pain for the condemned murderer, or do you simply oppose capital punishment and seize on things like that as arguments? If the latter, I would suggest that you would better serve your philosophical opposition to the death penalty by simply arguing that instead of relying on things like the possibility that the murderers feel pain. Improved anesthesia may remove the pain argument for you, DNA evidence will remove the 'innocence' argument in many cases, but if you oppose capital punishment on principle, there is not much that can refute that argument. You either believe in it or you don't (or you have mixed feelings about it); if you just morally don't believe in it, you shouldn't try base your opposition on things (pain; doubts about guilt in some cases) that won't hold true in all cases.
Posted by: Wednesday, November 22, 2006 at 02:57 PM
I promise not to dominate this post by being the one who takes it upon himself to attempt to respond to everyone who posts in favor of government sponsored killings. Having said that, some responses are necessary. I do indeed have a moral repulsion against my govt killing my fellow citizens. In fact, I have a moral revulsion to killing of any kind, but especially the kind that is done in my name. And I haven't "seized on things like that" for my argument. I was responding to the post, which dealt with this one aspect of government killings, y lethal injection. About that guillotine comment, it didn't appear to me to be a serious response, but excuse me if I misread you. I didn't think it was serious for obvious reasons, like the fact that most people who know the history of the use of the guillotine are indeed horrified at the "off with their heads" use to which it was put during the French Revolution, and the mere fact that I absolutely don't know anyone who won't turn their head in disgust when even a movie attempts to depict the appearance of that kind of murder. Actually, I don't believe there really is a humane way to commit murder, or government sponsored killing, and that is only a part of my reason for opposition for it being done as if it were with my consent. HB.
Posted by: Holler Boy Wednesday, November 22, 2006 at 03:14 PM
Anything created by humans is fallible. The one person who we grant to be infallible was crucified by us in the name of justice.
So lets just continue the killing?
The logic escapes me.
Posted by: kentondem Wednesday, November 22, 2006 at 03:26 PM
FYI, virtually all scholars agree there is no credible research showing the death penalty has any deterent effect. Supporters of the death penalty should face up to the fact it is really about blood and vengence, which is why it puts the US in the same league as barbaric or fascist countries like Iran, Yemen, China, Indonesia, and Singapore in continuing to use the death penalty. I guess the death penalty is yet another issue on which American rightwingers and rightwingers abroad such as the Taliban can agree.
Also, thanks to Holler Boy for raising the issue that it is likely that inmates are conscious as the deadly drugs are burning through their veins. I'd like to see the toxicology reports that show the levels of sodium pentathol that were in the blood of inmates at the time of death. In other states, reports have shown the levels were often so low it was virtually impossible the inmates were not conscious.
Posted by: Wednesday, November 22, 2006 at 03:27 PM
When it comes to the Death Penalty, I am for it, with reservations.
My main reservation is that it should not be just Reasonable Doubt, but Beyond the Shadow of Doubt, IE: Absolute, Incontrovertable Truth that the person being executed commited large scale, premeditated murder. No circumstantial evidence, no extenuation circomstanaces (ie drugs) and no single crime. I have seen to many cases of one guy getting stoned and robbing a store and killing the cashier getting the DP and then cleaning up in prison. (Wasn't the last execution in Ky of a guy who was stoned 30 years ago and killed a store clerk, but after years in prison he became a preacher to the inmates?) Also too many cases of DNA testing setting free a guy in prison for 20 years. I agree with Kentondem, if you are in prison for 20 years you can be set free and get some restitution if DNA test prove you innocent, you can't be brought back to life if you were proved innocent.
Posted by: Rob Wednesday, November 22, 2006 at 03:46 PM
Now turn your attention to the killer's victims and families. How many Thanksgiving holidays have been ruined because of their inhumane and monster like behavior?But, the killers will get their fat faces stuffed as taxpayer expense. Think about that as you have a nice holiday with your loved ones still alive.
Posted by: Truth Hurts! Wednesday, November 22, 2006 at 03:49 PM
As a conservative Republican, I have often gone round and round with this issue. In the end though, I cannot support capital punishment because of the simple fact that government should not take the life of one of its citizens, no matter how heinous a crime has been committed. Life in prison with no parole (EVER!!) is fine for those types of crimes.
Posted by: Wednesday, November 22, 2006 at 03:55 PM
Holler Boy, would you prefer the guilliotine? It is quick and painless. As long as we have capital punishment, if you suspect that lethal injections do involve pain and a time of suffering, would you prefer that a guilliotine be used instead of lethal injection? Or perhaps a firing squad instead of an injection?
Posted by: Wednesday, November 22, 2006 at 04:08 PM
The one question surrounding this issue that never ever is addressed is this: What is it about our American culture that makes us persist in capital punishment when other civilized countries of the world one by one ban it?
And for a follow-up question...Do we really believe we hold any moral authority and can democratize countries who practice an eye for an eye when we do the same?
Posted by: Eric James Wednesday, November 22, 2006 at 04:54 PM
"FYI, virtually all scholars agree there is no credible research showing the death penalty has any deterent effect."
No. Virtually all agenda-driven anti-death penalty advocates make that claim, but it is a foolish one. How do you measure deterrence? Ask a bunch of convicted criminals whether they would've killed if they thought they'd get the death penalty? Ask a bunch of law-abiding people whether they would kill if we didn't have it?
Posted by: Wednesday, November 22, 2006 at 05:05 PM
I believe that societies should be able to set their own standards for conduct. And further, I believe they have the right to say, "If you engage in certain behaviors, you forfeit your own life; you give up the right and the privilege to live in our society." Who among us does not know that for certain offenses, the penalty is your own life?
Therefore I do not subscribe to the premise that the death penalty is "government killing." Those people who engaged in heinous acts and crimes have, in essence, killed themselves because by their own acts, they have forfeited their own lives.
And regarding the comment about being conscious but not able to cry out for forgiveness, I have two comments. The first is that the plea for forgiveness need not be a vocal one. I believe God hears our thoughts and our silent prayers so a prayer thought but not vocalized is the same as a prayer vocalized. The second is, why didn't they ask for forgiveness before they were strapped down to the gurney?
Posted by: Wednesday, November 22, 2006 at 05:09 PM
Conservative Republican at 3:55, life in prison without parole sometimes is NOT fine for these criminals. Read about Michael St. Clair, who received such a sentence but continued to kill - both guards, and innocent others after escaping.
Michael St. Clair is proof that capital punishment can deter and prevent further murders - had he been executed for his first murders he would not have killed others. His execution will prevent him from killing others.
Posted by: Wednesday, November 22, 2006 at 05:10 PM