Justices uphold lethal method

The Baltimore Sun

In a decision expected to clear the way for states to resume executions by lethal injection, the Supreme Court upheld yesterday Kentucky's execution procedures, which are used by nearly every state with a death penalty law, including Maryland.

Executions across the country have been on hold since the high court agreed in September to hear the case of two Kentucky death row inmates who challenged the three-drug procedure, which is used to anesthetize, paralyze and stop the heart.

Within hours of yesterday's ruling, the governor of Virginia announced that he was lifting his state's moratorium on executions, while several prosecutors and governors around the country said they would seek execution dates as quickly as the courts can set them.

"We may see in some states a burst of executions," said Kent S. Scheidegger, legal director of the California-based Criminal Justice Legal Foundation, a nonprofit group that supports the death penalty. "Because there haven't been any executions since [the Supreme Court] took this case in the fall, a number of cases have reached the end of the normal appellate pipeline. So there's a buildup."

The court's 7-2 ruling has no direct impact on Maryland's de facto ban on executions, which was the result of a December 2006 ruling by the state Court of Appeals that the injection procedures were improperly developed without legislative oversight or public input.

Gov. Martin O'Malley has made no move to order new procedures, but after the high court decision, Republican leaders urged him to do so.

In a written statement released yesterday evening, O'Malley said he was reviewing the high court's 97-page decision. He noted the legislature's recent passage of a law establishing a commission to study the costs of Maryland's death penalty and its effectiveness as a deterrent to crime.

"We will follow the law in both cases," the governor said.

The Kentucky case, Baze v. Rees, virtually mirrors a federal lawsuit filed in Maryland by death row inmate Vernon L. Evans Jr. That case stalled when the state's highest court halted executions in ruling on an appeal that Evans filed in state court.

Like those involved with the Maryland federal case, lawyers for the Kentucky inmates challenged the procedure in which three drugs are used to put condemned prisoners to death - an anesthetic, a drug that paralyzes muscles, including the lungs and diaphragm, and a drug that stops the heart.

The prisoners' attorneys argued that the combination of drugs, if improperly administered, could cause inmates to suffer an excruciatingly painful death while masking their ability to signal suffering. They suggested executing condemned prisoners with only a fatal dose of anesthetic.

Kentucky countered that the constitutional ban against cruel and unusual punishment does not require executioners to eliminate any risk of suffering.

A majority of the justices sided with that argument.

"Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Constitution does not demand the avoidance of all risk of pain," wrote Chief Justice John G. Roberts Jr., in an opinion that garnered the support of Justices Anthony M. Kennedy and Samuel A. Alito Jr.

Four justices - John Paul Stevens, Antonin Scalia, Clarence Thomas and Stephen G. Breyer - agreed with the outcome while writing or signing on to concurring opinions.

Justice Ruth Bader Ginsburg wrote a dissenting opinion, which Justice David H. Souter joined.

Experts and advocates on both sides of the capital punishment debate agreed that the splintered ruling managed one important feat: It resolved the narrow legal issue of what standard lower courts should use to evaluate a state's execution protocols.

In the opinion written by Roberts, the three-justice plurality established that lethal injection procedures are unconstitutional if they present a "substantial risk of serious" pain to the condemned.

Their opinion left open the possibility that lethal injection procedures could be declared unconstitutional if a state refused to adopt a proposed alternative that was "feasible, readily implemented, and [would] in fact significantly reduce a substantial risk of severe pain."

Legal experts - and even the justices themselves in their opinions - offered drastically different predictions about the impact of the high court's new standard on litigation, which has tied up death penalty cases across the nation.

Scheidegger, of the Criminal Justice Legal Foundation, said the decision "comes pretty close to shutting down this chapter of the death penalty litigation."

"People will still make the challenges," he said, "but I think if the lower courts apply this decision properly, they should be dismissed pretty readily."

He singled out one passage from Roberts' opinion in which the chief justice wrote that the new standard should go a long way toward resolving the legal challenges that have been filed around the country. "A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard," Roberts wrote.

That pronouncement is critical, Scheidegger said, noting that among the 35 states that execute by injection, the protocols "are all substantially similar. To the extent that they differ, it's because they go further to check on [the prisoner's] consciousness."

But Deborah W. Denno, a professor at the Fordham University School of Law who has written about the history of execution methods for nearly two decades, said the ruling "leaves a big door open for future litigation" and that some death row inmates could meet the new standard with evidence already presented in court.

"When you look at California, where six out of the last 11 lethal injections seem to be indicating that there wasn't sufficient [anesthetic], that's substantial. That's a substantial risk," she said. "With evidence like that, attorneys will be in pretty good stead."

Denno said states will have to stop their practice of keeping secret most things having to do with executions, such as prison manuals that lay out the steps to put an inmate to death and the autopsies that often include tests that gauge the amount of each of the three drugs in the prisoner's system.

In his concurring opinion, Justice Stevens seemed to express disappointment that the court's ruling would not conclusively "bring the debate about lethal injection as a method of execution to a close."

"Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, ... but also about the justification for the death penalty itself," he wrote.

Recent decisions of state legislatures, Congress and the Supreme Court to retain capital punishment, Stevens wrote, "are the product of habit and inattention rather than an acceptable deliberative process."

In Maryland, the debate showed no signs of ebbing.

In a sharply worded letter to the governor, Republican leaders of the House of Delegates accused O'Malley of engaging in "a de facto suspension of the law" and called on him to immediately issue new execution procedures to begin the approval process.

"To take those [Division of Correction] procedures and put them into the format of a regulation and run them through the process is a relatively easy thing to accomplish," said Del. Anthony J. O'Donnell, the House minority leader. "But if we have a governor who decides to casually pick and choose what he's going to adhere to in the Constitution, we're all at great risk. We feel strongly about that."

Leaders with Maryland Citizens Against State Executions quoted Stevens' opinion yesterday in calling for the state to maintain its de facto moratorium on executions until lawmakers have a chance in January to consider the results of a death penalty study that the legislature recently approved.

O'Malley, a death penalty opponent, has held off ordering the new injection procedures required by the 2006 appeals court decision, saying that he wanted to give the General Assembly another opportunity this year to debate death penalty repeal.

But repeal efforts stalled again this year in a Senate committee. Lawmakers agreed, however, to create a commission to study the death penalty in Maryland.

O'Donnell said Democrats told him the governor was waiting for the Supreme Court's decision in the Kentucky case before moving on lethal injection regulations for Maryland.

"If that was true," the Republican lawmaker said, "that's gone now."

jennifer.mcmenamin@baltsun.com

The Associated Press contributed to this article.

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