TOMORROW, THE Supreme Court will again take up arguments over the death penalty. But in a challenge to Kentucky's use of lethal injection, the justices aren't being asked to reconsider whether capital punishment is constitutional; the court decided three decades ago that it is. They are being asked to determine only what standards states should apply in evaluating whether a method of execution violates the Eighth Amendment's prohibition against cruel and unusual punishment.
The Supreme Court has never struck down a method of execution. Lower courts in recent years, however, have differed on what standards to apply in evaluating the constitutionality of lethal injection, the most commonly used means of capital punishment. Lethal injection, ironically, was conceived 30 years ago as a more humane alternative to electrocution. Should states be allowed to proceed unless a particular method carries a "substantial risk of the wanton infliction of pain," as Kentucky and its supporters argue? Or should states be held to a tougher standard, as Kentucky death row inmates Ralph Baze and Thomas Bowling urge, and be forced to change or abandon a technique if it carries an "unnecessary risk of pain and suffering"?
We have long opposed the death penalty. But if capital punishment is to be carried out, it should be done as humanely as possible by a method that causes no pain. Evidence submitted in the Supreme Court case suggests that the current protocol for administering lethal injection cannot meet this standard.
Kentucky and most of the other states with the death penalty use a three-step process to administer a so-called lethal injection. First, an inmate is injected with a barbiturate general anesthetic that essentially renders him unconscious; if administered correctly and in the right dose, this drug should prevent the inmate from feeling pain. A second drug is then administered to paralyze the inmate; this drug is meant to prevent disturbing muscle spasms that sometimes accompany death. The third drug stops the heart and causes excruciating burning sensations. The most significant problem with this lethal cocktail is that because the second drug paralyzes the inmate and prevents him from reacting, there is no way to know whether he feels pain from the injection of the third and lethal drug.
Medical monitoring of the inmate could help prevent administration of the heart-stopping drug unless the inmate is unconscious and unable to feel pain. But the plaintiffs offer an even simpler alternative: administer a lethal overdose of the barbiturate general anesthetic, which would render the inmate unconscious and stop his breathing.
There is a danger that the justices will get so deeply involved in parsing the technical aspects of this case that they become micromanagers of state execution methods. This would be unfortunate and unwise. They should insist simply that states not rely on a flawed execution method that carries the unnecessary risk of pain when a more humane alternative is available.
No matter what the justices do in this case, the question of abolishing the death penalty remains a political one. Several states, including Nebraska, New Mexico and Montana, have come close to eliminating the state's death penalty. They should move ahead, as New Jersey recently did, and prohibit the practice. Doing so will relieve any court of the burden or inclination, as former Justice Harry A. Blackmun put it in 1994, to "tinker with the machinery of death."