Supreme Court Puzzles Some With Mixed Answers on Lethal Injection

By Charles Lane
Washington Post Staff Writer
Friday, February 10, 2006

In the past two weeks, the Supreme Court stopped two executions in Florida and allowed a lower court to halt another in Missouri -- but the justices allowed three other death sentences, in Texas and Indiana, to proceed.

The court's actions are not necessarily contradictory under the law, but they have puzzled many on both sides of the debate over capital punishment because in each case the death-row inmate raised a similar issue: the legality of lethal injection as the means for execution.

In the Texas case, for example, lawyers for Robert Neville Jr. took the wording for their Feb. 8 appeal from a petition that the court had accepted 14 days earlier when it halted the execution of Clarence E. Hill in Florida. But the justices rejected Neville's bid; he was put to death Wednesday.

"We look to the Supreme Court for consistency and a policy everyone can follow, and we're not getting it from this court," said Richard Alley, Neville's lawyer. Florida Gov. Jeb Bush (R) also cited "uncertainty" about the Supreme Court's direction when he declared Feb. 1 that he will not sign any more death warrants until the court issues final rulings on the Florida cases.

"I am sure the court is trying to apply some sort of sensible standard," said Douglas A. Berman, an expert in criminal sentencing law at Ohio State University's Moritz College of Law. "But they need to do a heck of a lot better job explaining why."

The probable explanation for the court's apparent zigzag is that a majority of the court is ready to consider only a relatively narrow issue related to lethal injection. But because the court generally does not reveal more than a bare minimum of information about how and why it chooses to take up any particular matter, lawyers have only been able to arrive at this educated guess after much litigation.

Introduced in Oklahoma in 1977 as an alternative to the electric chair, lethal injection has been adopted as the principal mode of execution by 37 of 38 death-penalty states, including Maryland and Virginia, as well as by the federal government and the U.S. military. The District has no death penalty.

Yet anti-death-penalty activists argue that the dosage of anesthetic in the three-drug "protocol" used to kill capital offenders is flawed, and that, if it is administered improperly by untrained personnel, the process of suffocation and cardiac arrest caused by the other two drugs can therefore be as painful as electrocution or the gas chamber.

Their claim was bolstered by a 2005 article in the Lancet, a medical journal, but state law enforcement officials remain skeptical.

"It's sort of a legal 'Hail Mary' pass," said Joshua Marquis, prosecutor in Astoria, Ore., and a vice president of the National District Attorneys Association.

Indeed, the argument had made little headway in court until the night of Jan. 25, when the justices issued a stay of execution to Hill, the convicted killer of a Pensacola, Fla., police officer, as he lay on a gurney waiting for the flow of lethal chemicals.

The court acted without recorded dissent after first rejecting Hill's request to consider the broad issue of whether lethal injection as such is "cruel and unusual punishment."

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