Justices uphold injections; executions expected to resume

— The U.S. Supreme Court upheld the lethal-injection method used by states around the country to administer the death penalty, clearing the way for a resumption of executions after a seven-month hiatus.

By 7-2, the court rejected challenges to the Kentucky execution procedure brought by two death-row inmates, holding that they had failed to show th at the risks of pain from mistakes in an otherwise "humane lethal execution protocol" amounted to cruel and unusual punishment, which is banned by the Constitution.

"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,"Chief Justice John Roberts wrote in the court's lead opinion.

In Arkansas, four death row inmates have filed a similar challenge to the state's lethal-injection procedure, and the state had declared a halt to all executions until the Supreme Court case was decided. Arkansas officials said Wednesday that they were still studying the opinion and that it was too soon to say when executions in the state will resume.

The lethal-injection fight has centered on a drug combination that has been used in almost 1,000 lethal injections across the country and is now virtually the exclusive U.S. execution method.The three-drug method is used by 35 states - including Arkansas - and the federal government.

Under the three-drug method, inmates are injected with sodium pentothal, an anesthetic, followed by pancuronium bromide, which shuts down the lungs and paralyzes the body. The final chemical, potassium chloride, induces a fatal heart attack.

Critics say the danger is that the first chemical might not render the inmate unconscious. The second drug then would cause a conscious paralysis while the third drug would produce what the Kentucky inmates' lawyers said would be "excruciating" pain.

The Kentucky prisoners had contended that the three-drug procedure was unconstitutional, and that in any event there were strong indications that Kentucky had bungled some executions, creating unnecessary pain for the condemned. Through their lawyers, they maintained that problems could be largely solved by administering a single overwhelming dose of a barbiturate, as opposed to the three-drug procedure.

The court concluded that "Kentucky's continued use of the three-drug protocol cannot be viewed as posing an 'objectively intolerable risk' when no other state has adopted the one-drug method and petitioners have proffered no study showing that it is an equally effective manner of imposing a death sentence."

The six justices who concurred in the judgment - with varying degrees of agreement - were Anthony M. Kennedy, Samuel A.Alito Jr., John Paul Stevens, Antonin Scalia, Clarence Thomas and Stephen G. Breyer.

Alluding to the Eighth Amendment's prohibition of cruel and unusual punishment, the court said history leads to the conclusion that "an execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain," a standard that bars disemboweling, burning alive and other excruciating ways of bringing about death. "Judged under that standard, this is an easy case," Roberts' opinion held.

But the deliberations were not easy, if the number of opinions is any indicator. Although seven members concurred in the judgment of the court, only Kennedy and Alito (who filed a concurring opinion of his own) joined Roberts' opinion. Scalia and Thomas joined each other's concurring opinions.

Justices Ruth Bader Ginsburg and David H. Souter dissented from the court's judgment. "I would not dispose of the case so swiftly given the character of the risk at stake," Ginsburg wrote, declaring that she would have sent the case back to the Kentucky courts for further scrutiny of the condemned men's claims.

The prisoners' challenge had implications far beyond Kentucky. The justices had placed an effective moratorium on executions nationwide while they considered the lethal-injection case, and the ruling will likely lift that. Roberts said that "a state with a lethal-injection protocol substantially similar to the protocol we uphold today" wouldn't violate the Constitution.

"It's a very long and detailed opinion," said Matt DeCample, a spokesman for Arkansas Gov. Mike Beebe, who was on vacation Wednesday in Scottsdale, Ariz. "It's something that we're going to review very thoroughly."

Attorneys with the governor's and attorney general's offices are studying whether any changes in the state's lethal-injection procedures are needed, said Justin Allen, Arkansas' chief deputy attorney general.

Arkansas' procedures are "substantially the same as Kentucky's,but there may be some differences," Allen said.

It's also possible the state could decide to keep its moratorium in place until the challenge filed by death row inmates Don Davis, Jack Harold Jones Jr., Terrick Nooner and Frank Wiliams is decided, he said.

The inmates have a lawsuit pending before U.S. District Judge Susan Webber Wright. Proceedings in the case were stopped when the Supreme Court took up the Kentucky case, and they are now expected to resume.

In light of the Supreme Court's ruling, the prospects for the Arkansas case are bleak, said attorney Jeff Rosenzweig, who represents Jones in the case.

Even if Wright found problems with Arkansas' procedures, "all Arkansas would have to do is copy what Kentucky does," Rosenzweig said.

Allen, the chief deputy attorney general, said he expected a decision on when executions will resume will be made in a week or two.

In Virginia, Gov. Timothy Kaine promptly lifted a moratorium on capital punishment that he imposed April 1 when he stayed the execution of a man who killed a police officer. The attorney general in Oklahoma said he will request an execution date for two condemned inmates who have run out of appeals and Florida Gov. Charlie Crist said he asked one of his lawyers to put together "a very short list" of death warrants to consider signing.

"Justice delayed is justice denied, and an awful lot of families of the victims have been waiting for justice to be done, and so that's certainly an important factor," he said.

The decision came a day before death penalty opponents in Arkansas planned a news conference at Philander Smith College in Little Rock launching a campaign to ask Beebe to continue the moratorium on the death penalty and to appoint a panel to study how executions are carried out. Speakers are expected to includePhilander Smith College President Walter Kimbrough and retired state Supreme Court Justice Steele Hayes.

Among the group's concerns are whether innocent people are being executed and whether death sentences are passed fairly in different areas of the state and with regard to defendants' socioeconomic status and race, said Bob Sells, a spokesman for the campaign.

The argument that lethal injection could be inhumane isn't a bigpart of the campaign, Sells said.

He said the Supreme Court decision "comes at a good time from our standpoint."

"This will make people more well-read and more knowledgeable about what's happening," Sells said.

The nation's last execution was Sept. 25, when a Texas inmate was put to death by injection for raping and shooting to death a mother of seven. Arkansas has not executed anyone since November 2005, when Eric Nance was put to death for the murder of Julie Heath, an 18-year-old Malvern woman.

The U.S. Supreme Court case is Baze v. Ress, 07-5439.

Information for this article was contributed by Andy Davis of the Arkansas Democrat-Gazette, David Stout of the New York Times, Greg Stohr of Bloomberg News, and Kelley Shannon and Mark Sherman of the Associated Press.

Front Section, Pages 1, 5 on 04/17/2008

Upcoming Events