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Justices to review lethal injection

The Baltimore Sun

For the first time since the Supreme Court upheld Utah's use of a firing squad in 1878, the nation's highest court is preparing to weigh in on the legality of a particular method of execution.

The justices are scheduled to hear arguments today in a case out of Kentucky that could decide whether the lethal injection procedures used by nearly every state with a death penalty law, including Maryland, amount to cruel and unusual punishment.

But before the court can tackle that question, it must first resolve the narrower legal issue of how to evaluate whether a state's execution protocols - the series of steps that corrections officials take to administer lethal doses of three drugs intravenously - are unconstitutional.

"It's important, because it is the first time the court will have acted on this issue," said Elisabeth Semel, director of the Death Penalty Clinic at the University of California's Berkeley School of Law. "So, as long as we have capital punishment in this country, it will be an important case."

Advocates on both sides of the debate say they hope that the case will settle an issue that has delayed executions nationwide and prompted half of the death row inmates facing imminent execution over the past two years to challenge the chemicals and procedures that would be used to kill them.

"In my view, it's more important that the decision be clear on what is and isn't allowable than whether they uphold the particular way that Kentucky does things," said Kent S. Scheidegger, legal director of the California-based Criminal Justice Legal Foundation, a nonprofit group that supports the death penalty.

Filed in 2004, the Kentucky case of Baze v. Rees closely resembles a federal lawsuit filed in Baltimore that stalled in 2006 after Maryland's highest court ruled that the state's lethal injection procedures were improperly developed. In that case, the Maryland Court of Appeals halted all executions until the steps for putting a prisoner to death are rewritten with the required legislative oversight and public input.

Gov. Martin O'Malley, a death penalty opponent, has held off directing prison officials to draft new regulations on lethal injection, explaining that he wants to give the General Assembly another opportunity this year to debate repealing the death penalty.

The same expert medical witnesses testified in the trials in Kentucky and Maryland.

And attorneys for Maryland death row inmate Vernon L. Evans Jr. argued many of the same points in federal court that are at play in the Kentucky case.

Lawyers for the inmates contend that the fatal doses of three drugs used in lethal injections, if improperly administered, could cause prisoners to suffer an excruciatingly painful death.

In all but one of the 36 states with death penalty laws, execution teams use the same trio of chemicals - an overdose of anesthetic followed by a drug that paralyzes the prisoner and a drug that stops the heart. The injection of the last two drugs in an inmate without enough anesthetic would leave him unable to move while suffocating and suffering cardiac arrest, expert witnesses on both sides agree.

That execution team members in many states are poorly trained increases the chances that something could go wrong, the death row inmates' attorneys say.

"This isn't nitpicking," said Deborah W. Denno, a professor at the Fordham University School of Law who has written about lethal injections and the history of execution methods for nearly two decades. "These are really egregious problems. And states haven't done anything about it."

Legal challenges filed in recent years in many states have offered an unprecedented glimpse into who does what behind the curtains and mirrored glass of the nation's death chambers.

In Missouri, a court case revealed that a doctor employed by the state to run many of its executions was dyslexic, sometimes confused the names of drugs and altered the dosages from one execution to another - but did not keep records of what amounts he used.

And in Maryland, members of the state's execution team testified to unfamiliarity with the very tasks they are asked to carry out when a convicted killer is put to death. A retired state trooper responsible for injecting the three drugs into IV lines said he rarely pays attention when an execution team member says certain steps in the process "because it doesn't have much to do with what I do." But an anesthesiologist for the death row inmate later told the judge that the steps mentioned by the man involved the injection of drugs - that team member's precise job.

Although death row inmates have always challenged their state's execution procedures - particularly with an execution date looming - the pace of those lawsuits picked up considerably after Supreme Court decisions in 2004 and 2006 cleared the way for condemned prisoners to more easily challenge the chemicals and procedures used in lethal injections.

In asking the high court to hear their client's case, Kentucky public defenders noted that in the wake of those rulings, "at least half of the death-sentenced inmates facing imminent execution have challenged various aspects of the lethal injection process, placing pressure on the lower courts and this court to resolve this complex issue under the shadow of an execution date."

The trouble with all the legal challenges winding through the state and federal court systems is that judges in different jurisdictions have used different standards to decide whether lethal injection violates the ban on cruel and unusual punishment.

In the Baze case, the Supreme Court justices will be asked to decide whether execution protocols are illegal if they create "an unnecessary risk of pain and suffering" as opposed to the standard used by the Kentucky courts - "a substantial risk of the wanton and unnecessary infliction of pain, torture or lingering death."

Attorneys for the Kentucky inmates argue that because the risk of excruciating pain can be avoided by simply eliminating the second two drugs and putting prisoners to death with only a fatal overdose of anesthetic, the three-drug regimen inherently creates unnecessary and unconstitutional risk.

"What the 8th Amendment prohibits is cruelty," said Semel of the University of California's Death Penalty Clinic. Noting that only the paralytic and heart-stopping drugs can inflict pain, she added, "Once you eliminate those ... the cruelty has been eliminated."

Lawyers representing the state of Kentucky counter that the constitutional ban against cruel and unusual punishment does not require executioners to eliminate any risk of pain and suffering.

"In effect," the attorneys wrote in their brief to the court, the inmates' "'unnecessary risk' standard places the states under a continuing obligation to adopt the 'least risk' alternatives [that are] reasonably available at any given time."

jennifer.mcmenamin@baltsun.com

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