High court upholds lethal injection

Methods used in Ky. ruled constitutional; Executions in US to resume

WASHINGTON - The Supreme Court yesterday ruled that the most common method of lethal injection used to execute condemned prisoners is constitutional, a decision sure to restart the nation's dormant death chambers. But the court's splintered reasoning also seems to make possible more challenges to the way the capital punishment is administered in the United States.

The justices voted 7 to 2 that the three-drug combination used by Kentucky, similar to that used by the federal government and 34 other states, does not carry a risk of substantial pain so great as to violate the Constitution's ban on cruel and unusual punishment.

"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," wrote Chief Justice John G. Roberts Jr.

The decision's most likely immediate effect is to dissolve the halt on executions that has taken root since the court announced in September that it would decide the case, Baze v. Rees. In Virginia, Governor Timothy Kaine lifted the hold he had placed on capital punishment just hours after the decision was announced.

But commentators from Amnesty International to Justice Clarence Thomas predicted that the divided court's decision is, in Thomas's words, "sure to engender more litigation."

"I assumed that our decision would bring the debate about lethal injection as a method of execution to a close," wrote Justice John Paul Stevens, who also announced that his 33 years on the court has led him to believe that capital punishment is unconstitutional. "It now seems clear that it will not."

That is because even though seven justices - including Stevens, who said the court's precedents required his consent - found Kentucky's procedures constitutional, a majority could not agree on the proper standard with which to judge execution practices.

Roberts said they should be examined to determine whether they pose a "substantial risk of serious harm," rather than the "unnecessary risk" proposed by lawyers for two men on Kentucky's death row. But only Justices Anthony Kennedy and Samuel Alito agreed with him.

Thomas, joined by Justice Antonin Scalia, rejected the test, and said a method of execution violates the Eighth Amendment's cruel and unusual punishment prohibition "only if it is deliberately designed to inflict pain."

Justice Stephen Breyer joined Stevens in saying Kentucky's process met the court's standards, but said he disagreed with Roberts's test as well.

Justice Ruth Bader Ginsburg, joined by David Souter, dissented, saying execution methods must not create an "untoward, readily avoidable risk of inflicting severe and unnecessary pain." She said she could not be sure Kentucky had taken all the safeguards. In all, seven of the nine justices wrote to explain their decisions.

In the Baze case, the justices were considering conflicting lower court opinions on lethal injection, which is used by the federal government and 35 states. At least 30 states, including Kentucky, use the same combination of three drugs to execute prisoners: sodium thiopental, which induces unconsciousness; pancuronium bromide, which paralyzes the muscles; and potassium chloride, which causes cardiac arrest.

A lawyer for the petitioners argued that if the first drug does not work, the second induces a "terrifying, conscious paralysis," and the third causes an "excruciating burning pain as it courses through the veins."

The petitioners were two Kentucky death row inmates sentenced to death for murders committed in the 1990s. One of them, Ralph Baze, was convicted of shooting a sheriff and a deputy sheriff execution-style when they tried to serve felony warrants on him in 1992. The other, Thomas C. Bowling, fatally shot a couple and wounded their 2-year-old son as they sat inside their car in a parking lot after Bowling had run into them with his vehicle.

The Kentucky inmates were not asking to be spared execution or injection. Rather, they wanted the court to order Kentucky to switch to a single, massive dose of barbiturates - the same method used to euthanize animals.

But Roberts said that "a condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative."

Instead, the prisoner must show an alternative procedure must be "feasible, readily implemented and in fact significantly reduce a substantial risk of severe pain," Roberts wrote.

That is the test that Stevens and Thomas said could open the door to more challenges. Elizabeth Semel, director of the Death Penalty Clinic at the University of California, Berkeley School of Law, said in Tennessee, where executions were halted by a federal judge, such evidence of alternative methods already exists.

The headline on the statement from the clinic showed how death penalty opponents viewed the decision: "Nationwide Lethal Injection Challenges to Move Forward."

Roberts sought to head off such interpretations. "A state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk" that would be unconstitutional, he wrote.