WASHINGTON (AP) - U.S. executions are all but sure to resume
soon after a nationwide halt, cleared Wednesday by a splintered
Supreme Court that approved the most widely used method of lethal
Virginia immediately lifted its moratorium; Oklahoma and
Mississippi said they would seek execution dates for convicted
murderers, and other states were ready to follow after nearly seven
months without an execution in the United States.
Voting 7-2, the conservative court led by Chief Justice John
Roberts rebuffed the latest assault on capital punishment, this
time by foes focusing on methods rather than on the legality of the
death penalty itself. Justice John Paul Stevens voted with the
majority on the question of lethal injections but said for the
first time that he now believes the death penalty is
The court turned back a challenge to the procedures in place in
Kentucky that employ three drugs to sedate, paralyze and kill
inmates. Similar methods are used by roughly three dozen states.
Death penalty opponents said challenges to lethal injections
would continue in states where problems with administering the
drugs are well documented.
The case decided Wednesday was not about the constitutionality
of the death penalty generally or even lethal injection. Instead,
two Kentucky death row inmates contended that their executions
could be carried out more humanely, with less risk of pain.
The inmates "have not carried their burden of showing that the
risk of pain from maladministration of a concededly humane lethal
injection protocol, and the failure to adopt untried and untested
alternatives, constitute cruel and unusual punishment," Chief
Justice John Roberts said in an opinion that garnered only three
votes. Four other justices, however, agreed with the outcome.
Roberts also suggested that the court will not halt scheduled
executions in the future unless "the condemned prisoner
establishes that the state's lethal injection protocol creates a
demonstrated risk of severe pain."
States can avoid this risk by using the three-drug procedure
approved in the Kentucky case, Roberts said.
Justices Ruth Bader Ginsburg and David Souter dissented.
Executions have been on hold since September, when the court
agreed to hear the Kentucky case. The justices stepped in to halt
six executions, and many others were put off because of the high
Forty-two people were executed last year out of more than 3,300
people on death rows across the country.
Wednesday's decision was announced with Pope Benedict XVI, a
prominent death penalty critic, in Washington and the court's five
Catholic justices - Roberts, Samuel Alito, Anthony Kennedy, Antonin
Scalia and Clarence Thomas - headed to the White House for a dinner
in his honor. All five supported the lethal injection procedures.
The court separately heard arguments Wednesday on the
constitutionality of the death penalty for people convicted of
raping children. A decision in that case is expected by late June.
The argument against the three-drug protocol is that if the
initial anesthetic does not take hold, the other two drugs can
cause excruciating pain. One of those drugs, a paralytic, would
render the prisoner unable to express his discomfort.
The Kentucky inmates wanted the court to order a switch to a
single drug, a barbiturate, that causes no pain and can be given in
a large enough dose to cause death.
At the very least, they said, the state should be required to
impose tighter controls on the three-drug process to ensure that
the anesthetic is given properly.
Ginsburg, in her dissent, said her colleagues should have asked
Kentucky courts to consider whether the state includes adequate
safeguards to ensure a prisoner is unconscious and thus unlikely to
suffer severe pain.
Stevens, while agreeing with Wednesday's outcome, said the
decision would not end the debate over lethal injection.
"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, pancuronium bromide, but also about the justification for
the death penalty itself," Stevens said in an opinion in which he
said for the first time that he believes the death penalty is
Stevens suggested that states could spare themselves legal costs
and delays in executions by eliminating the use of the paralytic.
Kentucky has had only one execution by lethal injection, and it
did not present any obvious problems, both sides in the case
But executions elsewhere, in Florida and Ohio, took much longer
than usual, with strong indications that the prisoners suffered
severe pain in the process. Workers had trouble inserting the
intravenous lines that are used to deliver the drugs.
Roberts said "a condemned prisoner cannot successfully
challenge a state's method of execution merely by showing a
slightly or marginally safer alternative."
He acknowledged that Wednesday's outcome would not prevent
states from adopting a method of execution they consider more
humane. Alito and Kennedy joined his opinion.
Justice Stephen Breyer concurred in the outcome, although he
said he would evaluate the case under the same standard put forth
by Ginsburg, that a means of execution may not create an
"untoward, readily avoidable risk of inflicting severe and
Scalia and Thomas said Roberts' opinion did not go far enough in
insulating states from challenges to their lethal injection
procedures, which were instituted to make executions more humane. A
"method of execution violates the Eighth Amendment only if it is
deliberately designed to inflict pain," Thomas said.
Donald Verrilli, a veteran death penalty lawyer who argued the
inmates' case, said he was disappointed in the decision, but
hopeful about other challenges. "I think important issues remain
after this decision," Verrilli said. "Records of administration
of lethal injections in other states raise grave doubts about the
reliability of those procedures."
The Rev. Pat Delahanty, head of the Kentucky Coalition to
Abolish the Death Penalty, said the ruling wasn't a surprise.
"We never expected it to do more than maybe slow down
executions in Kentucky or elsewhere," Delahanty said. "We're
going to be facing some executions soon."
Wednesday's case involved two inmates, Ralph Baze and Thomas
Clyde Bowling Jr., who were convicted of murder and sentenced to
death by juries in Kentucky. Baze killed a sheriff and a deputy who
were attempting to arrest him. Bowling shot and killed a couple and
wounded their 2-year-old son outside their dry-cleaning business.
Fayette County Commonwealth Attorney Ray Larson, who prosecuted
Bowling in 1992, said after the ruling: "Fact of the matter is,
this lethal injection process is about as far from cruel and
unusual as anything you can imagine. This is just another one of
those things the anti-death penalty gang is throwing against the
wall to see what sticks."
The case is Baze v. Ress, 07-5439.
(Copyright 2008 by The Associated Press. All Rights Reserved.)