Justices Uphold Lethal Injection Procedure
Split Reasoning Opens Door to New Challenges

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.

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.

The headline on a statement from the clinic showed how death penalty opponents view the decision: "Nationwide Lethal Injection Challenges to Move Forward."

Roberts sought to head off such interpretations.

"A state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk" that would be unconstitutional, he wrote.

In Virginia, the court's decision clears the way for several executions unless Kaine intervenes based on clemency requests. Kevin Green, who killed a south-central Virginia convenience store owner in 1998, is scheduled to be executed May 27, according to the state attorney general's office.

Maryland's highest court ruled in December 2006 that the state's lethal injection procedures had not been properly adopted.

Republican leaders yesterday called on Gov. Martin O'Malley (D) to issue regulations needed to allow executions to resume. But O'Malley, a death penalty opponent, noted that the General Assembly has approved a commission to study the effectiveness of the death penalty as a deterrent and the costs associated with it.

Staff writers William Branigin, Tim Craig and John Wagner contributed to this report.

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