ILNews

SCOTUS: Lethal injection allowed

Michael W. Hoskins
January 1, 2008
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While lethal injection itself isn't unconstitutional, a ruling today from the U.S. Supreme Court has left open the door for more legal challenges to how states administer the deadly drugs. But on a broader level, the one justice who supported the 1976 decision to reinstate Capital punishment is now in favor of reigniting the debate on the death penalty and striking it down.

In a widely splintered 7-2 decision in Baze, et al. v. Rees, et al., No. 07-5439, justices wrote a series of separate opinions totaling 97 pages as it cleared the way for death-row executions to resume nationwide and held that a three-drug injection used in at least 30 states is constitutional.

The court rejected the challenge by two Kentucky inmates that the state improperly administers the first drug in the three-chemical protocol used to make the inmate unconscious. Chief Justice John G. Roberts wrote the plurality opinion.

"To constitute cruel and unusual punishment, an execution method must present a 'substantial' or 'objectively intolerable' risk of serious harm," Chief Justice Roberts wrote. "A state's refusal to adopt proffered alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain."

A majority of his colleagues set out their own concurring opinions, chiming in on the issue and agreeing or disagreeing with each other on various aspects of the plurality ruling, subsequent impact, and overall issue of the death penalty.

Three justices - Chief Justice Roberts and Justices Samuel Alito and Anthony Kennedy - clearly supported the new standard, but four others disagreed with it in whole or in part, one justice was silent on the point, and the other said the key issue was not one standard or another but the "facts and evidence" given about a state's execution method.

Justices Ruth Bader Ginsburg and David H. Souter dissented in their own writing, noting they would vacate and remand with instructions to consider whether Kentucky's omission of alternatives poses "an untoward, readily avoidable risk of inflicting severe and unnecessary harm."

Justices Clarence Thomas and Antonin Scalia concluded that the governing standard in today's ruling isn't supported by the Cruel and Unusual Punishments Clause or in its own precedent on method-of-execution cases, and that the standard casts doubt on long-accepted methods of execution.

Justice John Paul Stevens concluded that instead of ending the controversy, this case will generate debate not only about the constitutionality of the three-drug protocol but also about the justification for the death penalty itself. Writing that he'd strike down the death penalty, he noted, "The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits it produces has surely arrived."

But Chief Justice Roberts wrote, "The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution."

What may remain open is how states assess what alternative options are available and how states administer the drugs during a lethal injection. That's where Indiana has more than a passing interest in the lethal injection issue, one that's been raised frequently by Hoosier death-row inmates - including three in the past year who are now all dead.

Those inmates had filed federal suits challenging the state's lethal injection method, making similar claims as in Baze, but those suits never gained steam in District Court and are now moot: David Leon Woods and Michael Lambert were executed by lethal injection last year, while inmate Norman Timberlake died from natural causes in his prison cell in November 2007 while still on death row.

On Page 9 of Justice Ginsburg's dissent, she refers to one of Timberlake's hearings in writing about the state's protocol: "In Indiana, a physician also examines the inmate after injection of the first drug."

Other states' methods are also outlined, and the ruling leaves open the possibility that lethal injection could surmount to "cruel and unusual punishment" if done arbitrarily or incorrectly.

"If a state refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a state's refusal to change its method can be viewed as 'cruel and unusual punishment' under the Eighth Amendment," the plurality opinion states.

A number of states had postponed executions in anticipation of this court decision and now new dates can be set, absent any fresh legal challenges.
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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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