By Robert Barnes
Washington Post Staff Writer
Tuesday, January 8, 2008
Several Supreme Court justices questioned yesterday whether a challenge to Kentucky's lethal-injection process brought by two death row inmates presents enough evidence to decide whether lethal injection is cruel and unusual punishment.
Several justices who support the death penalty clearly indicated during oral arguments that they believe the three-drug protocol used around the country passes the constitutional test. But even those sometimes critical of how capital punishment is carried out wondered if the case, which has halted executions in the United States, would be enough to decide whether lethal injection should be scrapped.
"I'm at sea," Justice Stephen G. Breyer told Washington lawyer Donald B. Verrilli Jr., who represents the inmates in the case. "You claim that this is somehow more painful than some other method. But which? And what's the evidence for that?"
Under sharp questioning, Verrilli acknowledged that the drug protocol used by the federal government and states can be administered without hurting an inmate if everything goes correctly, but said the record shows that there can be problems.
"The risk here is real," Verrilli told the court. "That is why in the state of Kentucky it's unlawful to euthanize animals in the way that it carries out its executions."
Kentucky's method is similar to what has been used in more than 900 executions in the United States during the past 30 years: The condemned inmate is injected with sodium thiopental, to render him unconscious; pancuronium bromide, to paralyze the muscles; and potassium chloride, to cause cardiac arrest.
Inmates, and those supporting them from around the country, say that if the first drug does not work, the second induces a "terrifying, conscious paralysis" and the third an "excruciating burning pain as it courses through the veins," according to Verrilli.
Those objecting to the process said it would be better to inject inmates with a single, massive dose of barbiturates, the way animals are euthanized.
"I'm terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary" except to ensure that the execution appears peaceful, Justice John Paul Stevens said.
But he agreed with Washington lawyer Roy T. Englert Jr., representing Kentucky, that the record shows the state had properly administered the protocol in its only lethal injection execution. Stevens wondered if that left the court enough room to decide whether the procedure is unconstitutional or if the court needs to "wait for another case to decide that rule."
Breyer and Justice David H. Souter suggested sending the case back to the lower court for an examination of the three-drug protocol compared with alternatives, something that was not done when the case was decided.
Justice Antonin Scalia strenuously disagreed, saying the process "could take years," while executions are put on hold. He also said a comparative analysis is unnecessary.
"This is an execution, not surgery," Scalia said, adding, "Where does this come from, that . . . in the execution of a person who has been convicted of killing people we must choose the least painful method possible? Is that somewhere in our Constitution?"
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. were equally skeptical. Roberts said removing the second drug from the protocol or going to a one-drug method would lead to more litigation from those questioning a new procedure.
Deputy U.S. Solicitor General Gregory G. Garre, supporting Kentucky, quickly agreed. "There is no shortage of imagination" on the part of those challenging the death penalty, he said.
The inmates who brought the challenge are Ralph Baze, who killed two law enforcement officers who were attempting to serve a warrant in 1992, and Thomas C. Bowling, who shot and killed a couple, and wounded their toddler, after crashing his car into theirs in 1990.
The case is Baze v. Rees.