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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