Justices to Hear Arguments in Case Challenging Lethal Injections

By Robert Barnes
Washington Post Staff Writer
Sunday, January 6, 2008

Before pancreatic cancer kills serial murderer Danial Lee Siebert, Alabama made one final try to do the job itself.

After two decades of legal wrangling, Gov. Bob Riley (R) last fall ordered Siebert's execution on the death sentences he received for killing four people, including two children, in 1986.

Death-penalty opponents and newspaper editors urged the governor to let Siebert die "on God's timetable," in the words of one editorial, but Riley was unmoved.

"I would in essence be commuting his sentence to life in prison and that is not the sentence he was given by a jury," the governor said in a statement.

But Riley's timing was bad, and Siebert once again avoided the executioner. He is one of more than 40 inmates around the country who became part of a de facto moratorium on the death penalty while the Supreme Court decides whether the procedures used in lethal injections violate the Constitution's prohibitions on cruel and unusual punishment.

The case to be argued tomorrow is brought by two Kentucky death row inmates. Like Siebert, they committed their crimes years ago, and their lengthy and unsuccessful appeals have led them to a new front in the debate over capital punishment -- challenging their manner of execution, rather than protesting their innocence or the way they were convicted.

The court long ago declared that the death penalty is constitutional and has never held that a specific method of execution violates the Eighth Amendment. Even lawyers for the inmates acknowledge that lethal injection can be carried out in a constitutional manner.

In 35 of the 36 states with the death penalty, lethal injections involve a three-drug protocol developed by Oklahoma's medical examiner in 1977: sodium thiopental, to render the inmate unconscious; pancuronium bromide, to paralyze the muscles; and potassium chloride, to cause cardiac arrest.

Lawyers for the inmates contend that the protocol is a complicated process that must be performed with precision to avoid the risk of agonizing pain. They argue that poorly trained personnel could inadequately administer the drugs and that the paralyzing agent masks what could be a torturous death.

"It is a shockingly problematic method of execution,'' said Deborah W. Denno, a Fordham University law professor who has compiled much of the research about how lethal injection is carried out.

She supports inmates and their lawyers who have persuaded courts and states to halt executions while the process is reviewed. They want the Supreme Court at a minimum to set standards for judges hearing such challenges.

Kentucky and other states that have the death penalty argue that the challengers have provided scant evidence of serious problems in the more than 900 executions performed by lethal injection. The method was adopted because it was seen as more humane than electrocution or other procedures the court has approved.

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