Lethal injection is constitutional

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Thursday, November 23, 2006

KENTUCKY SUPREME COURT

Lethal injection is constitutional

Cruel-and-unusual claim is rejected

By Andrew Wolfson
Wolfsonawolfson@courier-journal.com

The Courier-Journal

Executing prisoners by lethal injection is not cruel and unusual punishment, the Kentucky Supreme Court ruled yesterday.
Unanimously rejecting challenges of two double murderers, the court dismissed claims that the method Kentucky uses to anesthetize, paralyze and stop the heart of condemned killers is unconstitutional.

The decision affirms a July 2005 ruling by Franklin Circuit Judge Roger Crittenden, who heard evidence from 20 witnesses over seven days before rejecting challenges to the lethal injections of Ralph Baze and Thomas C. Bowling.

"Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain," the justices said. "But the prohibition is against cruel punishment and does not require a complete absence of pain."

The court also noted that evidence presented by the state Corrections Cabinet showed that Eddie Lee Harper, the first and so far only convicted killer to be executed in Kentucky by lethal injection, "went to sleep" in 15 seconds to one minute and never moved or exhibited any signs of pain before losing consciousness.

The 7-0 decision was the first in the nation by a state high court after a full trial on the merits of lethal injection, according to lawyers involved in the case.

Baze was sentenced to death in 1994 for killing Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe, who had gone to his home to serve warrants from Ohio. He shot both officers in the back with an assault rifle.

Bowling was sentencing to death in 1991 for fatally shooting Eddie Earley and his wife, Tina, in Lexington while they sat in their car before opening their family's dry cleaning business. Their 2-year-old child was wounded.
Baze and Bowling, who are on death row at Kentucky State Penitentiary in Eddyville, declined to comment on the ruling. But one of their lawyers, David Barron, an assistant public advocate, said they were disappointed.
The Rev. Pat Delahanty, chairman of the Kentucky Coalition to Abolish the Death Penalty, also said he was disappointed because "there is no humane way to execute one of our own."

David Elliott, a spokesman for the National Coalition to Abolish the Death Penalty, said the ruling was "not a huge surprise" because courts have generally been reluctant to declare specific methods of execution unconstitutional. He said the U.S. Supreme Court has never done so.

In a statement, the state Justice and Public Safety Cabinet said it had expected the ruling and that Gov. Ernie Fletcher has instructed his general counsel, Jim Deckard, to review the cases immediately "and, if appropriate, present the documentation to him so the wishes of the juries may be carried out in accordance with the law."

Attorney General Greg Stumbo, who will have to request warrants for the executions, said: "I am pleased that the Supreme Court has upheld our defense of Kentucky's execution protocol. … We have moved the process forward and, at the appropriate time, will seek a warrant for execution from the Governor."

Lawyers for Baze and Bowling, citing in part problems during lethal injections carried out since Crittenden's ruling, have filed another motion challenging the procedure; a hearing is set for Wednesday in Franklin Circuit Court. Both inmates also are pursuing other potential appeals, though their automatic appeals are exhausted.

The public defenders representing them had argued that the state's execution procedure potentially could leave an inmate conscious but paralyzed and unable to react as the final drug -- a caustic chemical -- is injected to stop the heart.

In a decision written by Justice Donald Wintersheimer, the Kentucky Supreme Court said a method of execution would violate state and federal bans on cruel and unusual punishment if it creates "a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death" and is "contrary to evolving standards of decency that mark the progress of a maturing society."

The court said Baze and Bowling had failed to prove that, given that 34 of the 38 states that allow capital punishment have adopted lethal injection because it is "universally recognized as the most humane method of execution and the least apt to cause unnecessary pain."

The justices also said that, while the inmates presented evidence that other drugs could be administered to reduce the potential for pain during lethal injection, the state and federal constitutions don't provide protection against all pain, only cruel and unusual punishment.

"It is not the role of this Court to investigate the political, moral, ethical, religious, or personal views of those on each side of this issue," the court said. "The legislature has given due consideration to these matters."

Wintersheimer was joined in the opinion by Chief Justice Joseph Lambert, Justices Bill Graves, Will T. Scott and John Minton and Special Justices John R. Adams and Richard Revell. Justices William E. McAnulty Jr. and John Roach did not sit for the case.

The General Assembly in 1998 adopted lethal injection for executions in Kentucky, although condemned killers convicted before that may select between lethal injection and electrocution. Baze and Bowling had refused to choose.

Reporter Andrew Wolfson can be reached at (502) 582-7189.