Justices Uphold Lethal Injection Procedure

By Robert Barnes
Washington Post Staff Writer
Thursday, April 17, 2008

The Supreme Court ruled yesterday that the most common method of lethal injection used to execute condemned prisoners is constitutional, a decision sure to restart the nation's dormant death chambers. But the court's splintered reasoning seems likely to result in more challenges to the way capital punishment is administered in the United States.

In a 7 to 2 vote, the justices said the three-drug combination used by Kentucky, similar to that used by the federal government and 34 other states, does not carry a risk of substantial pain so great as to violate the Constitution's ban on cruel and unusual punishment.

"Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual," wrote Chief Justice John G. Roberts Jr.

The decision's most likely immediate effect is to dissolve the de facto moratorium on executions that has taken root since the court announced in September that it would decide the case, Baze v. Rees. Just hours after yesterday's decision was announced, Virginia Gov. Timothy M. Kaine (D) lifted the hold he had placed on capital punishment.

But commentators as diverse as Amnesty International and Justice Clarence Thomas predicted that the divided court's decision is, in Thomas's words, "sure to engender more litigation."

"I assumed that our decision would bring the debate about lethal injection as a method of execution to a close," wrote Justice John Paul Stevens, who used the occasion to announce that his 33-year tenure on the court has led him to believe that capital punishment is unconstitutional. "It now seems clear that it will not."

That is because even though seven justices -- including Stevens, who said the court's precedents required his consent -- found Kentucky's procedures constitutional, a majority could not agree on the proper standard with which to judge execution practices.

Roberts said they should be examined to determine whether they pose a "substantial risk of serious harm," rather than the "unnecessary risk" proposed by lawyers for two men on Kentucky's death row.

But only Justices Anthony M. Kennedy and Samuel A. Alito Jr. agreed with him.

Thomas, joined by Justice Antonin Scalia, rejected that test and said a method of execution violates the Eighth Amendment's prohibition on cruel and unusual punishment "only if it is deliberately designed to inflict pain."

Justice Stephen G. Breyer agreed with Stevens in saying Kentucky's process meets the court's standards, but he said he disagrees with Roberts's test as well.

Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, dissented, saying execution methods must not create an "untoward, readily avoidable risk of inflicting severe and unnecessary pain." She said she could not be sure Kentucky had taken all necessary safeguards.

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