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U.S. Supreme Court has allowed 'some risk of pain' in executions

In a 2008 decision that upheld the three-drug protocol for lethal injections in Oklahoma and other states, the court acknowledged that errors could lead to pain for death row inmates.
by Chris Casteel Published: May 1, 2014

The U.S. Supreme Court has never found a specific method of execution unconstitutional, and justices ruled in 2008 that the three-drug protocol used for lethal injection in most states then was not cruel and unusual punishment.

In a case from Kentucky, Chief Justice John Roberts wrote, “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.”

Though justices fractured over reasoning in the case, seven of the nine agreed that it was not a violation of the Eighth Amendment for Kentucky to use the three-drug protocol instead of a single drug.

The high court had suspended executions in the country while considering the case and ultimately ruled that a death row inmate couldn’t challenge a state’s method of execution “merely by showing a slightly or marginally safer alternative.”

Roberts, joined by Justices Samuel Alito and Anthony M. Kennedy, wrote that the U.S. Constitution “does not demand the avoidance of all risk of pain in carrying out executions.”

“Some risk of pain is inherent in any method of execution — no matter how humane — if only from the prospect of error in following the required procedure,” Roberts wrote.

Roberts’ opinion notes that some people would not be satisfied with any execution method but that the high court had ruled states could have capital punishment laws.

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by Chris Casteel
Washington Bureau
Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. After covering the police beat, federal courts and the state Legislature in Oklahoma City, he moved to Washington in 1990, where...
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