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High court declines to hear 2d lethal injection challenge

WASHINGTON -- The Supreme Court's refusal yesterday to consider a second lethal injection case suggests that the justices are not ready to decide whether the drugs amount to cruel and unusual punishment, legal specialists said.

The denial was issued without comment, leaving court watchers to speculate about justices' reasons for rejecting an appeal by a Tennessee death-row inmate who says lethal injection is unconstitutional.

``The Supreme Court is plainly not ready to step into the lethal injection controversy yet," said Eric M. Freedman, a Hofstra University law professor.

``It's kind of a puzzle," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a victims' rights group in Sacramento.

Used by the federal government and all executing states but Nebraska, lethal injection has become a major issue in death penalty cases because of a 2005 study in the Lancet medical journal. The study suggested that the painkiller administered at the start of an execution can wear off before other drugs kick in and the prisoner dies.

In California earlier this year, an execution was postponed when no doctor or nurse would agree to administer a fatal dose of a barbiturate. A judge there is reviewing the issue.

And in Ohio earlier this month, medical technicians struggled for a half-hour before finding a viable vein in Joseph Clark's arm for an IV to deliver the lethal injection drugs.

The Supreme Court already is considering one lethal injection case brought by Clarence E. Hill, a Florida inmate on death row for killing a police officer in Pensacola 24 years ago.

In Hill's case, justices are considering only whether prisoners can file last-minute civil rights challenges saying their deaths by lethal injection would be cruel, not the broader constitutional issues raised by Abu-Ali Abdur'Rahman . He is on Tennessee's death row for the 1982 killing of a Nashville drug dealer.

A group of Tennessee doctors had told justices that the three-drug combination used in that state and most others ``makes it inevitable that, over time, some inmates will suffer excruciating and unnecessary torturous pain." They also said the state lacks properly trained medical officials to monitor prisoners during executions.

Death penalty supporters argue the Constitution does not guarantee convicted killers a pain-free execution.

Richard Dieter, executive director of the Death Penalty Information Center, said justices may have denied Abdur'Rahman's appeal because they want to wait until judges in several states have conducted lengthy hearings on the drug combinations that are used.

Freedman said the justices' rejection of the case ``suggests the Supreme Court is proceeding in its normal and appropriately cautious manner."

Others weren't surprised. ``I really didn't think this particular case was going to bring down the entire death penalty jurisprudence of the last 25 years," said Bryan Liang, a professor of health law studies at California Western School of Law in San Diego.

Scheidegger said he is not sure what to think, given the performance of several justices at last month's arguments in Hill's case.

During the argument, justices clashed with one another and asked numerous questions about how states carry out capital punishment .

Then again, Scheidegger said, it wouldn't be the first time a Supreme Court argument was misleading and justices reached a completely different result than what they suggested with their questions and comments.

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