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Justices Uphold Lethal Injection Procedure

In all, seven of the nine justices wrote to explain their decisions.

It was a somewhat fitting exercise for a court that spends much of its time on capital punishment, even as the number of death sentences imposed nationally continues to fall. After issuing the decision yesterday in Baze, the justices heard arguments in Louisiana's attempt to execute a man for raping his 8-year-old stepdaughter.

The court held in 1977 that it is a violation of the Eighth Amendment to execute someone who raped an adult woman. But Louisiana and four other states have passed laws saying capital punishment for rape of a child is different.

Louisiana's death row contains two men convicted of the offense; they are the only people among more than 3,300 awaiting execution nationwide whose crimes did not include homicide.

The justices by their questioning again seemed split, with Roberts and Scalia appearing sympathetic to Louisiana. Kennedy wondered whether it might be necessary that the convicted be a repeat offender, something that Louisiana does not require but other states do.

In the Baze case, the justices considered conflicting lower-court opinions on lethal injection. At least 30 states, including Kentucky, use the same combination of three drugs: sodium thiopental, which induces unconsciousness; pancuronium bromide, which paralyzes the muscles; and potassium chloride, which causes cardiac arrest.

An attorney for the petitioners, who were backed by other death row inmates around the country, argued that if the first drug does not work, the second induces a "terrifying, conscious paralysis" and the third causes an "excruciating burning pain as it courses through the veins."

The petitioners were two Kentucky inmates sentenced to death for murders committed in the 1990s. One of them, Ralph Baze, was convicted of shooting a sheriff and a deputy sheriff when they tried to serve felony warrants on him in 1992. The other, Thomas C. Bowling, fatally shot a couple and wounded their 2-year-old son as they sat in their car in a parking lot after Bowling ran into their vehicle with his.

The Kentucky inmates were not asking to be spared execution or injection. Rather, they wanted the court to order the state to switch to a single, massive dose of barbiturates -- the same method used to euthanize animals.

But Roberts said that "a condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative."

Instead, he must show an alternative procedure that would be "feasible, readily implemented and in fact significantly reduces a substantial risk of severe pain," Roberts wrote.

That is the test that Stevens and Thomas said could open the door to more challenges. Elisabeth Semel, director of the Death Penalty Clinic at the University of California at Berkeley law school, said that in Tennessee, where executions were halted by a federal judge, evidence of alternative methods already exists.


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