Court upholds use of lethal injection (April 16, 2008)

The death penalty debate returned to the forefront as a deeply conflicted Supreme Court ruled that death sentences carried out by lethal injection do not violate the Eighth Amendment ban on cruel and unusual punishment.

In the case, Baze v. Rees, No. 07-5439, two inmates are challenging Kentucky's four-drug lethal injection protocol. In the wake of the Supreme Court's grant of certiorari on Sept. 25, states that use the lethal injection method have indicated they will stay executions pending the Court's decision.

The Kentucky Supreme Court affirmed the constitutionality of lethal injection last year, noting that of the 38 states that permit capital punishment, the majority use the injection method because it is "universally recognized as the most human method of execution and the least apt to cause unnecessary pain." Baze v. Rees, 217 S.W.3d 207, 210 (Ky. 2006).

The lethal injection method calls for the administration of four drugs: Valium, which relaxes the convict, Sodium Pentathol, which knocks the convict unconscious, Pavulon, which stops breathing, and potassium chloride, which essentially puts the convict into cardiac arrest, ultimately causing death.

The Kentucky Supreme Court noted that only one person has been put to death under the state's lethal injection method. It observed that the convict went to sleep within a minute of the first injection and did not move or show any evidence of suffering during the remainder of the process.

On April 16, a 7-2 court upheld the legality of Kentucky's lethal injection method.

Chief Justice John G. Roberts Jr. wrote for a the three-justice plurality, holding that lethal injection would only be unconstitutional if it would present a "substantial risk of serious harm."

"Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual," the chief justice wrote.

Four justices - John Paul Stevens, Antonin Scalia, Clarence Thomas and Stephen G. Breyer - agreed with the conclusion while writing or signing on to concurring opinions.

While noting that he agreed with the plurality opinion because it was in line with past precedent, Justice Stevens wrote in his concurrence that he has come to believe the death penalty itself may be unconstitutional.

"The time for dispassionate, impartial comparison of the enormous costs that death-penalty litigation imposes on society with the benefits that it produces has surely arrived," he wrote.

Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, dissented.

"Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs," Ginsburg wrote. "I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Several justices noted that this decision is not likely to end legal challenges to the death penalty, and the plurality opinion seemed to suggest that lethal injection procedures could be declared unconstitutional if a state refused to adopt a proposed alternative that was "feasible, readily implemented, and [would] in fact significantly reduce a substantial risk of severe pain."