For anyone who thought the nation's highest court might find even a narrow constitutional objection to capital punishment, yesterday's decision upholding Kentucky's method of execution by lethal injection was a definite reality check. The lopsided 7-2 vote means that the moratorium on executions imposed by some states is over and death penalty opponents must continue to wage a state-by-state battle.
The ruling's impact in Maryland is uncertain. Gov. Martin O'Malley, who opposes the death penalty, has delayed revising protocols that had to be in place for executions to proceed, effectively instituting a moratorium. The court's decision may change that. This summer, a newly commissioned state panel begins a study of the death penalty system. We think the commission should come to the same conclusion that a similar panel did in New Jersey last year, finding life without parole a better option.
The justices considered whether the protocols Kentucky used for lethal injections, including a combination of three drugs, was unconstitutional largely because of a risk of pain as the drugs are administered. About 30 of the 36 states that have the death penalty use the same drugs as Kentucky. In a plurality opinion, Chief Justice John G. Roberts Jr. and Associate Justices Anthony M. Kennedy and Samuel A. Alito Jr. did not agree that the possible improper administration of the drugs posed a substantial or intolerable risk of harm that would qualify as "cruel and unusual" punishment prohibited by the Eighth Amendment. Justice John Paul Stevens went along with the ruling, but protested that quibbling over the method of execution should give way to finding the penalty unconstitutional.
But that's still a minority view on the court. Tolerance for the death penalty remains a state-by-state exercise. Opponents of the death penalty rightly vow to continue challenging the practice for reasons such as faulty procedures, racial and economic bias, possible innocence of the accused and excessive litigation costs - factors that certainly apply in Maryland and argue in favor of abolishing the ultimate punishment here.