Executions to resume after high court OK's lethal injections
By MARK SHERMAN
Associated Press
April 17, 2008
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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 unconstitutional.
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 agreed.
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 unnecessary pain.''
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.''
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