Court Rules in Ala. Inmate's Favor
Man Can Challenge Use of Surgical Technique in Execution
By David Von Drehle
Washington Post Staff Writer
Tuesday, May 25, 2004; Page A03
An Alabama death row inmate whose veins were damaged by years of drug abuse may challenge the use of a surgical technique to accomplish his execution by lethal injection, the U.S. Supreme Court ruled yesterday.
The case of David Larry Nelson resolved a very narrow issue, but attorneys for some death row inmates hoped it would open the door to more attacks on the most common execution method in the United States. All but one of the 38 states where the death penalty is legal employ lethal injection for some or all executions.
As his execution date approached after he had spent 25 years on death row, Nelson learned that he was a candidate for a procedure called a "cut-down," in which prison personnel would cut open his arm or leg to install a catheter. This was because veins near the surface of his body were too damaged to be used to deliver the three-drug mix that paralyzes and kills condemned prisoners.
Lower courts rejected his legal challenge to the cut-down on the ground that he was abusing the appeals process. In a unanimous opinion written by Justice Sandra Day O'Connor, the Supreme Court overturned that decision and ordered the U.S. Court of Appeals for the 11th Circuit to hear Nelson's case.
O'Connor cited testimony that "the cut-down is a dangerous and antiquated medical procedure" that could not be justified "unless there exists an intent to render the [execution] procedure more painful and risky than it otherwise needs to be."
The court said that Nelson's case would not "open the floodgates to all manner of method-of-execution challenges" and that its ruling "is extremely limited." But attorneys for condemned Maryland inmate Steven Oken -- whose execution is scheduled for the week of June 14 -- and others expressed hope that the climate for such appeals is now brighter.
"It affects dramatically the balance and equation on Oken," said Fred Bennett, whose appeals for Oken claim that lethal injection is cruel and unusual punishment in violation of the Eighth Amendment.
Maryland Solicitor General Gary E. Bair disagreed. "If anything," Bair said, "it hurts Oken because the issue that was before the Supreme Court . . . was extremely narrow. It has nothing to do with the merits of lethal injection."
For Richard C. Dieter, executive director of the Death Penalty Information Center, the possible impact is a question of subtle signals. "I think the court wanted to make it clear that the way the state treats its prisoners is a reflection of the country's broader commitment to basic rights," he said.
The case is Nelson v. Campbell, No. 03-6821.
In other death penalty cases, the court agreed to hear California inmate William Payton's argument that his jury should have been allowed to consider his religious conversion as a reason to spare his life. The case is Woodford v. Payton, No. 03-1039.
The justices declined to take the case of Alphonso Stripling, a Georgia inmate who wanted the court to define standards for judging whether an inmate is mentally retarded and therefore immune from capital punishment. The case is Stripling v. Head, No. 03-1392.
In a more fractious case, the court ruled 7 to 2 that police in Norfolk were allowed to search an empty car without a warrant after the driver was arrested with drugs in his possession. Four justices, led by Chief Justice William H. Rehnquist, expanded on a rule that was originally crafted to let officers search a car when they had reason to fear that the driver could pull out a weapon or destroy evidence.
In this case, however, driver Marcus Thornton had left the car before he was arrested. Justices O'Connor, Antonin Scalia and Ruth Bader Ginsburg expressed concern that Rehnquist's approach was getting too broad.
Scalia, joined by Ginsburg, worried about "purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find."
Justices John Paul Stevens and David H. Souter dissented entirely.
The case is Thornton v. United States, No. 03-5165.
And in fallout from last week's ruling that states can be sued for damages if they fail to provide disabled people access to courthouses, the Supreme Court sent a half-dozen other suits under the Americans With Disabilities Act back to lower courts for fresh deliberations.
Advocates for the disabled said they hope this will lead to last week's ruling being extended to cover other state facilities. "The lower courts will, we believe, use this as the basis to decide in favor of plaintiffs seeking access to similarly important state facilities such as voting places, schools and jails," said Brewster Thackeray, spokesman for the National Organization on Disability.
Staff writer Susan Levine contributed to this report.
© 2004 The Washington Post Company