As Challenges to Lethal Injection Mount, Justices Set to Hear Case

The court has said that the "unnecessary and wanton infliction of pain" on prisoners is unconstitutional, but it has never banned any particular method of execution as "cruel and unusual punishment." And legal analysts do not expect it to ban lethal injection, which would be tantamount to banning the death penalty. It rejected appeals this year that asked it do so.

The court also has never decided whether challenges to methods of execution should be treated as petitions for habeas corpus, which are subject to strict limits, or as civil rights lawsuits, which may be filed more easily. The court declined to rule on that technical but crucial matter when it decided the 2004 case of the Alabama prisoner.

But on Jan. 25, it accepted Hill's request to rule on the issue, granting him a stay of execution as he lay strapped to a gurney with an intravenous line in his arm. If Hill wins, states could face a wave of new death-row litigation.

Pending the result in Hill, the Supreme Court granted stays to another Florida inmate and one in Missouri. In Maryland, Vernon L. Evans Jr. received a stay of execution from the state's high court so that it could decide several claims related to alleged racial discrimination and the state's lethal-injection protocol. But his lawsuit is based on state, rather than federal, law.

In North Carolina, Willie Brown Jr. won a stay April 7, but a federal judge later let his execution proceed after the state agreed to use a brain-wave monitoring machine, with a doctor present, to check Brown's awareness level. Brown was put to death Friday.

The Brown execution showed that states may be able to find some physicians willing to aid executions, at least indirectly.

In California, however, the execution of Michael A. Morales, set for Feb. 21, was delayed because the state could not meet a federal judge's requirements for doctor participation.

Attorneys for Morales had unearthed evidence, including six California execution logs, which suggested prisoners might have been conscious when potassium chloride was injected into their veins.

U.S. District Judge Jeremy Fogel in San Jose ordered the state either to replace its three-drug protocol with a single lethal dose of barbiturates or to use the protocol with a "qualified person" present to ensure that the anesthesia works.

The state had lined up two anesthesiologists to assist, but they withdrew after a federal appeals court based in San Francisco added the requirement that the doctors intervene to add medication if Morales appears to be waking up.

Morales's execution for the kidnapping and murder of Terri Winchell, 17, in 1981 remains on hold; more hearings are set for May 2 and 3. Meanwhile, the state has said it will change the dosage of the three drugs and inject sodium pentothal in a continuous drip rather than a single initial dose.