Nov. 17, 2004 file photo shows the Kentucky State Penitentiary execution chamber at the Eddyville, Ky., prison. (AP Photo/The Paducah Sun, Stephen Lance Dennee)
by James Oliphant
The Supreme Court grappled with detailed questions of medical science and the pharmacology of death Monday, all against the backdrop of a larger, more overriding concern: whether inmates have a constitutional right to an execution that is as painless as possible.
The justices heard a challenge brought by two Kentucky prisoners to the state’s lethal injection procedure. The inmates contend that the protocol, which involves the sequential use of three drugs to numb, paralyze, and kill the prisoner, carries with it an unconstitutional risk of extreme pain. (A preview of the case from today’s Chicago Tribune can be found here.)
The claim met with hostility from several members of the court, with Justice Antonin Scalia openly ridiculing it. “This is an execution, not surgery,” he griped.
The inmates, Ralph Baze and Thomas Bowling, argue that Kentucky uses poorly trained personnel to administer the drugs, creating an unnecessary risk of harm. The key to the process is effective application of the first drug, sodium thiopental, a barbiturate that is intended to anesthetize the inmate in advance of the second and third drugs, which can cause excruciating pain otherwise.
The inmates’ lawyer, Donald Verrilli Jr., contended that Kentucky could simply use a shot of the barbiturate without the other drugs. Death would perhaps take longer, he said, but there would be no risk of pain.
But that was where Verrilli ran into trouble. Several justices complained that the science behind Verrill’s statement wasn’t borne out in the lower court record, disturbing some who may be sympathetic to his arguments. “There’s a risk of harm generally when you’re talking about the death penalty,” said Justice Stephen Breyer. He said he was bothered by studies he had read that said the single dose wasn’t as effective as the three-drug protocol. “I’m left at sea,” Breyer said.
Breyer also was concerned about Verrilli’s contention that medical personnel needed to be involved in the executions. (The state forbids it by law.) He noted that doctors consider such work a breach of medical ethics and wondered if anti-death penalty forces were simply trying to halt executions altogether by insisting on a procedure that could not be carried out in practical way.
Several justices also seemed uncomfortable with the court deciding whether a particular method of execution is constitutional. Scalia pointed out that the court had never struck down use of hanging, a firing squad or the electric chair. And Justice Samuel Alito asked Verrilli if he was claiming that such earlier forms of execution would now be considered a violation of the Eighth Amendment’s ban on cruel and unusual punishment because they carry a risk of pain.
Thirty-six states use a similar procedure as Kentucky’s and a de facto moratorium on executions has in been in place nationwide since the court agreed to hear the Kentucky case.
Arguing for the state, lawyer Roy Englert conceded that if sodium thiopental was administered incorrectly, the prisoner would indeed suffer extreme pain. But, he said, the state had training and procedures in place to guard against it. He said that close monitoring of an inmate by medical professionals during the execution wasn’t necessary because if the anesthetic didn’t work properly, the inmate “would be awake and screaming.”
But critics of the three-drug protocol say the second drug, pancuronium bromide, is a muscle-paralyzing agent which prevents inmates from alerting authorities to their pain. And Englert was pushed by Justice John Paul Stevens as to why the paralyzer was even necessary.
“It does bring about a more dignified death,” Englert said, “for the inmate and the witnesses.”
“The dignity of the process outweighs the risk of excruciating pain?” Stevens shot back.
Stevens conceded that the lack of evidence in the record about potential risks inherent in Kentucky’s procedure—the state has only executed one prisoner since it instituted the lethal injection regime—meant that it was unlikely the court would rule against the state. But, Stevens said, “I’m horribly troubled by the fact that this second drug causes a risk of excruciating pain.”
That left the justices in a bit of a bind. At the end of the argument, it appeared there are two roads the court could take. The first involves sending the case back to the original trial court in Kentucky for further proceedings on the state’s procedures, including whether there might be a better pharmacological alternative.
That idea was not palatable to Scalia, who complained that it would result in a “nationwide cessation of executions while the trial court finishes its work.”
The second would be for the court to rule in favor of Kentucky, holding that its procedures are constitutionally acceptable. That, however, warned Justice David Souter, would simply invite another challenge from a state such as Florida that has a more extensive history involving flawed executions.
“We want some kind of definitive decision here,” Souter said.
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Comments
Let's go back to the guillotine. Click, swoosh, whack, it's over.
Posted by: Dave | January 7, 2008 2:23 PM
If you take as a "given" that the death penalty is, in and of itself, a decent thing for us to be doing as a society (I don't necessarily), then you have to also accept that putting someone to death isn't going to be comfortable for them. There IS NO means of killing another living, sentient being that's guaranteed to be painless.
I have to believe, though, that lethal injection is a probably GOOD DEAL LESS PAINFUL than what the victims of these people went through at their hands.
Posted by: Op109 | January 7, 2008 2:50 PM
""That idea was not palatable to Scalia, who complained that it would result in a “nationwide cessation of executions while the trial court finishes its work.”"
Heaven forbid! That so tracks 'Scalia'.
What a cretin. Some of these people are possibly innocent, but Judge Mengle doesn't want the process to stop, in the name of, uh, uh, efficiency perhaps?
God, these activist conservative judges are so eager to pull the trigger on somebody, anybody.
Posted by: C.Morris | January 7, 2008 6:13 PM
"The claim met with hostility from several members of the court, with Justice Antonin Scalia openly ridiculing it. “This is an execution, not surgery,” he griped."
Scalia is such a NUT!!! He never ceases to amaze me. Trture is alive and well with Scalia. He clearly is pro death penalty, as he argued that this case would back up executions for years. Scalia sucks!!!
Posted by: Logic Prisoner | January 7, 2008 7:55 PM
I look back at other ways of execution, and think how painful they must be.
However, i am certain it by no means equals the pain inflicted upon the party whom suffered at the offenders....FREE WILL!
This grief:
Forever Embedded into the victims family and friends for the REST of their lives...think about that!
(but don't forget about the victims pain too)
If lethal injection causes discomofrt?... Oh-my
what a trajedy!
If they suffer a bit,
SO-BE-IT!
It's only a fraction of the pain they instilled into Innocent People.
And if you think my opinion is a bit ridiculous.
Why don't you let one of these death row inmates. Live at your home with your family for a nite or two.
And see how many reach the breakfast table the next morning
Then maybe you'll reconsider what PAIN & Suffering really means.
My suggestion: People should focus there thoughts on people who haven't blown there chance to co-exist in our great free society.
Posted by: j justice | January 7, 2008 8:32 PM
Log Pris,
The whole affair with Scalia seems to revolve around Texas preserving it's execution 'record'.
He seems to fear that Texas, the execution capitol of the 'free' world may fall into second! He seems to want to protect George Bush's 'lightning legacey' re. retribution.
I would say that they don't care who fries as long as it's 'legal'.
Hey, in their paradigm, the more that cook, the more votes in the next election cycle. Right?
The whole kerfluffle has the sour stench of a public mens room in a West Texas bus station about it.
Posted by: C.Morris | January 7, 2008 8:47 PM
One wonders of the pain inflicted on the victim(s) and if their end of life experience was as humane as the state is giving the offenders. Scalia could have (should have) expressed his opposition in a more civil manner (scarcasm) so that Souter would not have been offended. The "feel good" let us be merciful left-wing defenders that this is cruel punishment is obscene. One only has to remember the pain the families are still experiencing, to not give a flying fig if the IV does not penetrate the vein on the first try. Too bad.
Posted by: sondra k miller | January 7, 2008 9:40 PM
j justice,
Justice without mercy is not justice denied.
Also, as has been shown repeatedly, there are innocent people being executed.
It's a hard truth, but none the less true.
If I were convinced every person executed was actually guilty I would not register a protest.
Until that day arrives, it's immoral and unethical to do a little victory dance on these men's graves.
Posted by: C.Morris | January 7, 2008 9:43 PM
These people are on death row because they committed a grievous crime (most likely some form of murder). Were they concerned about inflicting pain on their victims or the families of their victims? Perhaps I fall too far on the opposite side, but my vote would be to omit the 1st 2 drugs and let them writhe in agony for the final few minutes of their lives so their experience in leaving this world is reflective of the pain they inflicted on others. Perhaps if we started caring more about the victims of the crime than the perpetrators, we'd make some headway.
Posted by: Mike Wagener | January 7, 2008 9:56 PM
What's being decided in this case is not whether there should be capital punishment and executions by the various states of those convicted and sentenced to death. The court will weigh in on lethal injection as it's currently practiced, but this decision is not going to do away with the death penalty. Let's be realistic here.
Posted by: Humanist | January 7, 2008 10:11 PM
The whole kerfluffle has the sour stench of a public mens room in a West Texas bus station about it.
Posted by: C.Morris | January 7, 2008 8:47 PM
Ain't it the truth!!!
Posted by: Logic Prisoner | January 7, 2008 10:41 PM
The death penalty is still being used in the US, Saudi Arabia, China and many of the Muslim countries of the East and Middle East. None of the civilized members of the European Common Market still kill people. We must be a lesser people to be still killing. For some reason we feel that revenge and "closure" are a proper role of the state. We have a three hundred year history of applying the death penalty in a capricious manner. Scalia is man that could serve any butcher in any country at any time.
Posted by: c. perry | January 7, 2008 10:43 PM
* * * * *
“Some of these people are possibly innocent, . . . ”
* * * * *
Posted by: C.Morris | January 7, 2008 6:13 PM
Umm, nope. Even if they were innocent, they aren’t claiming their innocence, or that they were wrongfully convicted or even that they don’t deserve the death penalty. Their challenge is a narrow one, aimed only at the trying to get the method of execution declared unconstitutional.
Your particular beef with Scalia is a gripe in search of a reason.
But, if you want a gripe with a reason, I can provide one. Just look at the part of the article where Justice Scalia comment that the court had never struck down use of “hanging, a firing squad or the electric chair.” That’s misleading in a large sense.
The Supreme Court may not have ruled that any of those procedures unconstitutional, but lower federal appellate courts certainly have. The Ninth Circuit held that execution in the gas chamber was an unconstitutional procedure due to the excruciating pain associated with asphyxiation and the lingering mental and physical pain associated with the prisoner holding his breath awaiting his inevitable demise. Similarly, a district court in Washington State also ruled that hanging a 409 pound inmate would be cruel and unusual punishment based on Ninth Circuit precedent (because, unlike a prior case involving hanging, the risk of pain and/or decapitation were so much greater).
These cases were, in turn, based on Supreme Court decisions which clearly stated: 1) “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, . . .;” 2) “[p]unishments are deemed cruel when they involve torture or a lingering death . . . ,” and 3) the infliction of “unnecessary” pain or cruelty is a major factor in determining whether a punishment is “cruel and unusual” under the Eight Amendment. (See Wilkerson v. Utah, 99 U.S. 130, 135-36 (1878); In re Kemmler, 136 U.S. 436, 447 (1890); and Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947).)
Thus, contrary to the noises Scalia was making, the very issue before the court has been in play for quite some time, even if it hasn’t had the concrete applications to which he referred. It is too late in the day for him to challenged these basic, legal principles with any credibility – which appears to be what he had in mind.
Posted by: John W. | January 7, 2008 11:12 PM
Just hang them...after the trap door opens the rope snaps the neck from the weight of the body and there isn't any pain at all.
When The Iraqis hung Saddam, the other 'Hussein' it was over in seconds.
Don't forget, these people are murderers and they deserve what they get.
Paulo
Posted by: Paulo | January 8, 2008 12:40 AM
Perhaps I fall too far on the opposite side, but my vote would be to omit the 1st 2 drugs and let them writhe in agony for the final few minutes of their lives so their experience in leaving this world is reflective of the pain they inflicted on others. Perhaps if we started caring more about the victims of the crime than the perpetrators, we'd make some headway.
Posted by: Mike Wagener | January 7, 2008 9:56 PM
Is the Republican platforn going to call for the return of drawing and quartering as a means of execution?
Intentionally infliction of pain and suffering is barbaric, no matter who does it.
Posted by: Luke | January 8, 2008 9:19 AM
"j justice,
Justice without mercy is not justice denied.
C.Morris"
Whaaatt?? I think you meant
'...is justice denied'.
Hey Morris, get a copy ed.! maybe the wife!
Posted by: TheReamer | January 8, 2008 9:31 AM
I admit I have not poured over each case, but how do we know that Saddam was not executing murderers? I mean look at those people, they get off on killing each other.
Posted by: sam hartsock | January 8, 2008 10:11 AM
Abolish the death penalty. It is not the way a just society should act. To quote Mahatma Ghandi "An eye for an eye only makes the whole world blind."
It also DOESN'T WORK. As the following statistics prove.
http://www.deathpenaltyinfo.org/article.php?scid=12&did=168
Posted by: Steve34 | January 8, 2008 12:06 PM
I think the real pain comes from waiting so long to have the sentence carried out. Get it over in a hurry, there are many ways that would be quick. I do have one question however, "what about the victims pain"?.
Posted by: Paul Jaeger | January 8, 2008 12:13 PM
Just hang them...after the trap door opens the rope snaps the neck from the weight of the body and there isn't any pain at all.
When The Iraqis hung Saddam, the other 'Hussein' it was over in seconds.
Don't forget, these people are murderers and they deserve what they get.
Paulo
Posted by: Paulo | January 8, 2008 12:40 AM
Paulo, bringing the crazy!
Posted by: Logic Prisoner | January 8, 2008 12:44 PM
I do have one question however, "what about the victims pain"?.
Posted by: Paul Jaeger | January 8, 2008 12:13 PM
Does killing the criminal take away the victims pain?
No, of course it doesn't. It just makes bloodthirty individuals who want revenge happy.
Posted by: Luke | January 8, 2008 1:41 PM
* * * * *
Posted by: Steve34 | January 8, 2008 12:06 PM
Your statistics don't prove the death penalty doesn't work, as you claim.
1. A number of non-death penalty states have higher per-capita murder rates than death penalty states, even when those death penalty states had larger populations. For example, Michigan’s 2006 murder rate (7.1) exceeded that of California (6.8) even though California had 3.5 times as many people. Texas, with 2.3 times as many people, also had a lower per-capita murder rate (5.9). Florida, which had 8 million more people than Michigan, had a murder rate of 6.2. Michigan – it must be remembered – was the most populous non-death penalty State in 2006.
2. The highest per-capita murder rate in 2006 was held by Washington D.C. which had a rate of 29.1. D.C., of course, doesn’t have the death penalty.
3. The death-penalty states with the lowest per-capita murder rates in 2006, had lower per-capita murder rates than the lowest four rates among non-death penalty states. New Hampshire, South Dakota, Wyoming and Montana, respectively, had per capita murder rates of 1, 1.2, 1.7, and 1.8 in 2006. The lowest four 2006 per-capita murder rates in non-death penalty states, North Dakota, Hawaii, Maine, and Iowa, had per-capita murder rates, respectively, of 1.3, 1.6, 1.7 and 1.8.
Statistics that can be manipulated like this don’t say very much. There are too many state-by-state factors involved - other than the presence or absence of the death penalty - to be able to say how much or little a deterrent the death penalty really is. Note, for instance that most, if not all, the states with the highest populations are also death penalty states. [Even Illinois is still a death penalty state despite its moratorium on executions. That’s because the death penalty hasn’t been abolished and courts are still handing down death sentences.] Higher population density translates into larger urban areas, more urban poverty, higher incidence of gang activity, and (consequently) more acts of violence. [Psychologists long ago proved that mammals are more violent toward each other the closer they are packed together.] These factors could easily mask the fact that the murder rates would even be higher were the death penalty to be abolished in these high population, death penalty states. Consequently, a superficial correlation between murder rates in death penalty and non-death penalty states just doesn’t prove the death penalty is without deterrent effect.
Posted by: John W. | January 8, 2008 3:31 PM