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.

They and the federal government argue that lawsuits challenging lethal injection are aimed at capital punishment itself. "Each wave of litigation engender[s] further delay in the execution of death sentences, even if the claims are ultimately not successful," said a brief filed by U.S. Solicitor General Paul D. Clement.

The court's review comes at a time of renewed focus on capital punishment. The number of death sentences imposed by juries fell in 2007 to the lowest level in modern times, according to the Death Penalty Information Center, and New Jersey last month became the first state in 40 years to abolish capital punishment. A few other states, including Maryland, have debated whether carrying out death sentences is too costly and time-consuming, compared with the alternative of life in prison without parole.

Polls show that Americans are still supportive of capital punishment but that they favor life imprisonment if given the option.

The court at times has seemed equally conflicted. Its frequent rulings on individual cases often result in 5 to 4 decisions either to uphold a death sentence or to send it back because of mistakes at the trial level.

The justices in recent years have eliminated the death penalty for the mentally retarded and for juveniles. They have also been more demanding about the evidence presented to juries during sentencing and about the competence of lawyers defending the accused.

Clay Crenshaw, an Alabama assistant attorney general pursuing the Siebert execution, said the average death-penalty case in his state takes 15 to 20 years because of legal reviews and an overwhelmed court system. "Now what we see in Alabama is the inmates raising their lethal-injection challenges at the end of their appeals," he said.

Supreme Court decisions in 2004 and 2006 opened the door to people seeking to challenge lethal-injection procedures. About half the inmates facing execution in the past two years have brought such challenges, and the evidence they presented has resulted in the procedure being at least temporarily halted in 12 states.

According to the petition filed by the Kentucky inmates, Ralph Baze and Thomas Bowling, resulting court decisions are a "haphazard flux ranging from requiring 'wanton infliction of pain,' 'excessive pain,' 'unnecessary pain,' 'substantial risk,' 'unnecessary risk,' 'substantial risk of wanton and unnecessary pain,' and numerous other ways of describing when a method of execution is cruel and unusual."

Baze killed two law enforcement officers who were attempting to serve a warrant in 1992. Bowling shot and killed a couple, and wounded their toddler, after crashing his car into theirs in 1990. Their lawyers said the lethal-injection procedures used in Kentucky and elsewhere pose a "significant and unnecessary risk" of pain that could be prevented by using another method.

"There's nothing speculative about whether there can be problems," said Elizabeth Semel, director of the Death Penalty Clinic at the law school at the University of California at Berkeley. But proving widespread problems is difficult, she acknowledged, because of secrecy surrounding the procedures and an inability to know whether inmates were properly anesthetized.

In Kentucky, where the only lethal-injection execution appeared to proceed without incident, a trial court said the inmates had not shown that the state's procedures exposed them to "a substantial risk of wanton and unnecessary infliction of pain." The state's supreme court agreed.

Now much about the future of lethal-injection executions across the country will be determined by how expansively the divided Supreme Court decides the case.

"This is one case where I don't want them to be too narrow," said Kent Scheidegger, a death-penalty proponent at the Criminal Justice Legal Foundation. He filed a brief urging the court not to decide the case "in a way that creates a moving target for a permanent new round of litigation."

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