Queries fly in death penalty case

The Baltimore Sun

Washington -- Suggesting that they are deeply divided over the legality of execution procedures used by most states, the Supreme Court justices asked dozens of questions yesterday about the drugs used in lethal injections and how much risk of pain is permissible when putting a convicted killer to death.

The questioning came during oral arguments in a Kentucky case that could decide whether widely used lethal injection rules violate the constitutional ban on cruel and unusual punishment. The case, which justices expect to decide in June, marks the first time that the nation's highest court has weighed in on a specific execution method since it upheld Utah's use of a firing squad in 1878.

Although some justices expressed an interest in settling an issue that has delayed executions nationwide and spawned dozens of lawsuits from death row inmates challenging the procedures that would be used to kill them, they did not seem to agree on how to accomplish that.

"I think all the justices seemed to want to get this whole issue behind them. They just had some disagreement as to how to do that," said Kent S. Scheidegger, legal director of California's nonprofit Criminal Justice Legal Foundation, which submitted a brief in support of Kentucky.

Carl W. Tobias, a law professor at the University of Richmond who has followed the lethal-injection debate, said the splintering of the court might mean the case won't provide definitive guidance to lower courts handling the lawsuits challenging the three drugs used by all but one of the 36 states with a capital sentencing option.

"There probably is not a majority for the bigger issue - the substantive issue of whether this violates the Eighth Amendment," he said. "I think we may go back to what we've had for a long time with many appeals and efforts to contest this."

The justices were thoroughly - and quickly - engaged in the case.

Donald B. Verrilli Jr., a veteran capital defense attorney who argued the case for the Kentucky inmates, got only two sentences into his presentation before being interrupted by Chief Justice John G. Roberts Jr. Representing the Kentucky Department of Corrections, Roy T. Englert Jr. uttered only 42 words before another justice jumped in with a question.

The Kentucky case virtually mirrors a federal lawsuit filed in Maryland by death row inmate Vernon L. Evans Jr. That case stalled in late 2006 when the state's highest court halted executions until the steps for putting prisoners to death are rewritten. The O'Malley administration has since held off directing prison officials to draft new regulations.

Like those involved with the Maryland case, lawyers for the Kentucky inmates argue that the three drugs used in lethal injections, if improperly administered, could cause an excruciatingly painful death. They contend that because the risk of pain can be avoided by eliminating the paralyzing and heart-stopping drugs and executing prisoners with only a fatal overdose of anesthetic, the three-drug procedure inherently creates unnecessary and unconstitutional risk.

Kentucky counters that constitutional protections do not require executioners to eliminate all risk of pain.

Justice Antonin Scalia zeroed in on that point.

"We have approved electrocution. We have approved death by firing squad," he said. "I expect both of those have more possibilities of a painful death than the protocol here. 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?"

But Justice John Paul Stevens expressed grave concerns about the possibility of inflicting such severe pain.

"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," he said of the paralytic drug that many states use to mask muscle spasms that might upset witnesses or cause the inmate to die what advocates on both sides of the debate routinely characterize as "an undignified death."

"If everyone who goes through the process knows there is some risk of excruciating pain that could be avoided by a single-drug protocol," he asked, "would he prefer to say, 'I want to die in a dignified way?'"

The inmates in the Kentucky case, Ralph Baze and Thomas Bowling, were sentenced to death for double murders.


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