Injection cases get back on track
Injection cases in Oklahoma get back on track

By Chris Casteel

Published: April 17, 2008

WASHINGTON — The U.S. Supreme Court on Wednesday upheld the lethal injection method of execution developed in Oklahoma and used by most states with the death penalty.

The decision means Oklahoma and other states can move forward with executions that have been on hold since September, when the court agreed to consider the case and imposed an unofficial moratorium on executions.

The ruling, in a case from Kentucky, was somewhat fractured, but ultimately seven of the nine justices agreed that the three-chemical method of execution created in Oklahoma more than 30 years ago did not violate the Eighth Amendment's protection against cruel and unusual punishment.

Chief Justice John Roberts, writing an opinion that was joined by two other justices, said, "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.

"It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.”

Roberts, whose opinion was joined by Justices Anthony M. Kennedy and Samuel Alito, also wrote that a death row inmate couldn't successfully challenge a state's method of execution "merely by showing a slightly or marginally safer alternative.”

However, if there was a feasible and readily available alternative that could "significantly reduce a substantial risk of severe pain,” states might be in violation of the Eighth Amendment if they didn't adopt it, Roberts said.

Oklahoma, in 1977, became the first state to approve lethal injection as its method of execution. A state legislator who opposed the death penalty pushed for the method after the Supreme Court reinstated the death penalty.

Oklahoma had previously used electrocution.

The three-drug protocol was designed to sedate, then paralyze and then induce cardiac arrest. The Oklahoma Department of Corrections chose the three drugs.

According to the court, 36 states and the federal government use lethal injection and at least 30 use the same combination of the three drugs.

The method was designed to be painless, but the two Kentucky inmates whose challenge reached the high court claimed that improper administration of the first drug could lead to severe pain when the other two drugs were injected.

The inmates' attorneys, supported by several groups including the ACLU, argued that an execution method was unconstitutional if it posed an "unnecessary risk” of pain.

The Supreme Court on Wednesday declined to adopt that standard.

In a separate opinion, Justice Clarence Thomas, joined by Justice Antonin Scalia, rejected the standard that Roberts embraced — that a method would have to pose a "substantial” risk of pain before it raised constitutional questions.

"At what point does a risk become ‘substantial?'” Thomas said in his opinion. "What alternative procedures are ‘feasible' and ‘readily implemented?'”

Thomas said the high court had failed to give lower courts a "bright-line rule” for evaluating challenges to execution methods.

"In short, I reject as both unprecedented and unworkable any standard that would require the courts to weigh the relative advantages and disadvantages of different methods of execution or of different procedures for implementing a given method of execution,” Thomas wrote.

Justices Ruth Bader Ginsburg and David Souter wrote a dissenting opinion in which they argued that the case should be sent back to the Kentucky courts to consider whether the state's "failure to include readily available safeguards” to ensure the inmate is unconscious before the second two drugs are injected "creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

Justice John Paul Stevens agreed that Kentucky's method couldn't be ruled unconstitutional, but he said the decision issued by Roberts wouldn't end the court cases about the three-drug protocol.

"Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.”

The executive director of the Death Penalty Information Center, Richard Dieter, said other cases were likely to go forward in lower courts challenging the three-drug method.

"The record on lethal injections was sparse in Kentucky,” Dieter said.

"They had only carried out one lethal injection. Other states have had repeated problems with this process and the risks of extremely painful executions have not been removed by this decision.”