Supreme Court Allows Lethal Injection for Execution


David Stout


New York Times


April 17, 2008

Correction Appended

WASHINGTON — The Supreme Court on Wednesday upheld Kentucky’s method of putting criminals to death by lethal injection, not only clearing the way for Kentucky to resume executions but ending an unofficial moratorium in the 35 other states that have the death penalty.


However, Justice John Paul Stevens, while concurring reluctantly with the judgment of the court, wrote that he now believed capital punishment itself is unconstitutional, and that Wednesday’s ruling might serve to reignite the debate over whether it should exist in the United States.


By 7 to 2, the court rejected challenges to the Kentucky execution procedure brought by two death-row inmates, holding that they had failed to show that the risks of pain from mistakes in an otherwise “humane lethal execution protocol” amounted to cruel and unusual punishment, which is banned by the Constitution.


The prisoners had contended that the three-drug procedure used on death row — one drug each to sedate, paralyze and end life — was unconstitutional, and that in any event there were strong indications that Kentucky had bungled some executions, creating unnecessary pain for the condemned. Through their lawyers, they maintained that problems could be largely solved by administering a single overwhelming dose of a barbiturate, as opposed to the three-drug procedure.


The prisoners’ challenge had implications far beyond Kentucky. Of the 36 states with the death penalty, nearly all use the same three-drug procedure that Kentucky uses, as does the federal government, although some states allow a prisoner a choice of how to die.


In February, the Nebraska Supreme Court ruled against electrocution as the state’s execution method, meaning that Nebraska is no longer the only state to have the electric chair as the only means of putting someone to death. Now, with the Kentucky challenge disposed of, other states that had set aside executions seem poised to begin them again.


Gov. Tim Kaine of Virginia quickly announced that his state would lift its moratorium on executions, and the Rev. Pat Delahanty, head of the Kentucky Coalition to Abolish the Death Penalty, said, “We’re going to be facing some executions soon,” The Associated Press reported.

Executions across the country have been on hold since last September, when the Supreme Court decided to take the Kentucky case. About two dozen executions did not go forward as scheduled while the case was pending, death penalty opponents told the A.P. Because pre-execution procedures can be time-consuming, there was no immediate way to gauge how quickly they might resume. One prisoner who could be facing death soon, in view of the Governor Kaine’s remarks, is Edward Bell, who is on Virginia’s death row for killing a Winchester police officer. Mr. Bell’s execution had been set for April 8.


In a decision written by Chief Justice John G. Roberts Jr., which weighed the Kentucky prisoners’ claims that they faced an unacceptably high risk of suffering at the hands of their executioners, the court concluded that “Kentucky’s continued use of the three-drug protocol cannot be viewed as posing an ‘objectively intolerable risk’ when no other state has adopted the one-drug method and petitioners have proffered no study showing that it is an equally effective manner of imposing a death sentence.”


The prisoners who brought the challenge were Ralph Baze, who killed a sheriff and a deputy who were trying to serve him with a warrant, and Thomas C. Bowling, who killed a couple whose car he had damaged in a parking lot.


The procedure that they challenged uses a barbiturate, then pancuronium bromide, a paralyzing agent, followed by potassium chloride, which stops the heart and brings about death — but with terrible pain if the barbiturate does not work as intended, the condemned men’s lawyers maintained. And because of the paralyzing agent, a prisoner could appear peaceful and relaxed even while suffering, they argued.


Lawyers for the prisoners contended that the barbiturate-only method is widely used by veterinarians, who are barred in many states from using the same paralyzing agent employed in executing people. But the court rejected that argument, stating that “veterinary practice for animals is not an appropriate guide for humane practices for humans.” The justices who concurred in the judgment — with varying degrees of agreement — were Anthony M. Kennedy, Samuel A. Alito Jr., Antonin Scalia, Clarence Thomas and Stephen G. Breyer, as well as Justice Stevens.


Alluding to the Eighth Amendment’s prohibition of cruel and unusual punishment, the court said history leads to the conclusion that “an execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain,” a standard that bars disemboweling, burning alive and other excruciating ways of bringing about death. “Judged under that standard, this is an easy case,” the court held.


But the deliberations were not easy, if the number of opinions is any indicator. Although seven members concurred in the judgment of the court, only Justices Kennedy and Alito (who filed a concurring opinion of his own) joined Chief Justice Roberts’s opinion. Justices Scalia and Thomas joined each other’s concurring opinions.


Justices Ruth Bader Ginsburg and David H. Souter dissented from the court’s judgment. “I would not dispose of the case so swiftly given the character of the risk at stake,” Justice Ginsburg wrote, declaring that she would have sent the case back to the Kentucky courts for further scrutiny of the condemned men’s claims.


Perhaps most interestingly, Justice Stevens filed an opinion concurring in the judgment of the court, but turning against capital punishment itself. Indeed, he asserted that recent decisions by state legislatures, Congress and the Supreme Court itself to preserve the death penalty “are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks” of the ultimate punishment.


Justice Stevens noted that in the 1976 decision in which the Supreme Court upheld the constitutionality of capital punishment, Gregg v. Georgia, the court declared that “three societal purposes” justified the death penalty: “incapacitation, deterrence and retribution.”

“In the past three decades, however, each of these rationales has been called into question,” Justice Stevens said. The possibility of a life sentence without parole, he said, has often caused people to soften their positions in favor of inflicting death.


“Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this court and legislatures to re-examine” the ultimate question, Justice Stevens wrote, using a phrase used by a former Texas prosecutor and judge: “Is it time to kill the death penalty?”


Coming from Justice Stevens, those words were especially significant. The justice (who will turn 88 on Sunday) was one of the seven justices who voted in 1976 to uphold capital punishment. Since then, he has heard many challenges to various aspects of the death penalty and the “evolving standards of decency” often invoked by its opponents. In 2002, Justice Stevens was in the majority as the court ruled that mentally retarded killers could not be executed, and in 2005 he was in the majority as the court banned the death penalty against juvenile offenders.


Deborah Denno, a Fordham University law professor, said further death-penalty litigation is all but certain in light of the court’s “heavily splintered” opinions on Wednesday, in part because the court recognized that “a risk of harm can qualify as an Eighth Amendment violation.”


On Wednesday, after handing down their opinions in the Kentucky case, the justices heard arguments in a death penalty case from Louisiana. The question was whether the Constitution allows capital punishment for the rape of a child who is not killed.


Correction: Earlier versions of this report erred in say that Nebraska used the electric chair for executions. It did use execution by electric chair until a February ruling by the Nebraska Supreme Court found it unconstitutional. The state must now adopt a constitutional method of execution.


For text of opinion:


Litigation Assured in Wake of Decision

Adam Liptak


New York Times


April 16, 2008


Executions in Texas, Alabama and other Southern states with high death-penalty rates are likely to resume shortly in the wake of the Supreme Court’s decision Wednesday upholding Kentucky’s method of putting condemned inmates to death.


But the fractured decision may actually slow executions elsewhere in the country, legal experts said, as lawyers for death-row inmates launch fresh challenges based on its newly announced legal standards.


“The decision will have the effect of widening the divide between executing states and symbolic states — states that have the death penalty on the books but rarely carry out executions,” said Jordan M. Steiker, a law professor at the University of Texas.


George H. Kendall, a lawyer with Holland & Knight in New York who is an authority on capital litigation, said the effect of the Kentucky decision, Baze v. Rees, “is going to vary greatly, in part because of the mish-mash of opinions.”


“I bet you by this time next week there will be execution dates in Texas and Alabama,” Mr. Kendall said. “But nothing is going to happen very quickly in California at all.”


Supporters of the death penalty welcomed the decision, though they suggested that it could have been more definitive.


“It’s true that they didn’t completely slam the door and lock it,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation. “But I expect that the de facto moratorium will end this year, and in most states executions will resume.”


Opponents of the death penalty said the decision was little more than a road map for more litigation. “I think it opens the door,” said Elizabeth Semel, the director of the death penalty clinic at the University of California Berkeley.


Chief Justice John G. Roberts Jr., in his plurality opinion, said that states with lethal injection protocols “substantially similar” to that used in Kentucky would be immune from challenges under the court’s new standard, which requires death row inmates to prove not only a demonstrated risk of severe pain but also that the risk is substantial when compared to available alternatives.


“Substantially similar?” asked Deborah Denno, a law professor at Fordham whose work was cited by the court. “I’m not sure what that is or what that would constitute.”


Thirty-five states and the federal government use lethal injections in executions, most if not all of them relying on a combination of three chemical: a sedative, a paralyzing agent and a drug that stops the heart. If administered properly, all concerned agree that they produce a humane death. If administered improperly, the second and third chemicals can give rise to intense pain.


Relatively little is known about Kentucky’s procedures for administering the chemicals, Ms. Denno said, adding that other states have much more evidence concerning the risks involved in the administration of the chemicals.


Justices on the court’s left and right wings said the new standard was an invitation to a fresh round of litigation.


“The question of whether a similar three-drug protocol may be used in other states remains open and may well be answered differently in a future case on the basis of a more complete record,” Justice John Paul Stevens wrote.


Justice Clarence Thomas said “today’s decision is sure to engender more litigation” because “we have left the states without a bright-line rule.”


Ms. Semel said the fractured decision, the relatively sparse information available about practices in Kentucky and the new standard announced by the court would produce fertile ground for additional litigation, particularly in states where flaws in the administration of lethal injections were documented.


“If it looks like California or it looks like Missouri or it looks like Tennessee,” she said, “then it’s not a substantially similar protocol to the one in Kentucky.”


Indeed, Ms. Denno said, “attorneys are in pretty good shape for further litigation.” In particular, she said, they may be able to demand that state corrections departments provide them with more information about their execution procedures.


Justice Stevens urged states to consider abandoning one of the three chemicals, the paralyzing drug that would leave an unsedated inmate conscious but unable to move, breathe or cry out. The justices in the plurality said the drug, pancuronium bromide, made executions more dignified and faster, interests Justice Stevens dismissed as inadequate.


“States wishing to decrease the risk that future litigation will delay executions or invalidate their protocols would do well to reconsider their continued use of pancuronium bromide,” Justice Stevens wrote.


No state has so far abandoned the three-chemical combination. And it is not clear whether the Baze decision will make changes more or less likely.


“The court is giving different messages,” Ms. Denno said. On the one hand, Chief Justice Roberts suggested emulating the Kentucky protocol may provide states with a safe harbor. On the other, Justice Stevens said that the paralyzing drug is a litigation magnet.


States that have considered moving to a simpler protocol may have been waiting, some legal experts said, until Baze was decided, so as not to prejudice Kentucky’s chances before the court.

More than 40 stays have been issued in lethal injection cases by various courts, 17 of them since the Supreme Court agreed to hear Baze. Those stays will presumably now be dissolved.


But the litigations will not stop, Mr. Steiker said.


“We will end up largely where we were before Baze,” he said. “It has set us on a course in which there will be continuing challenges, efforts to document botched executions and efforts to continue to explore alternative protocols.”



California may resume executions by year's end

The Supreme Court's ruling that lethal injections can be used on inmates could speed up some proceedings in the state. California's last execution was in early 2006.


By Maura Dolan

Los Angeles Times

 April 16, 2008

SAN FRANCISCO — Executions in California may resume by the end of the year -- with one inmate being put to death by lethal injection each month -- as a result of today's Supreme Court ruling, a high-level state prosecutor said.

Chief Assistant Atty. Gen. Dane Gillette, who has defended the state's lethal injection procedures against a federal court challenge, said he believes it is "certainly feasible" to resume executions by the end of the year.

U.S. District Judge Jeremy Fogel in San Jose had ordered a temporary halt to executions in California after finding the state's lethal injection procedures were unconstitutional. A decision by Fogel on whether a new execution protocol by the state meets constitutional requirements is pending.

A hearing in the case has been set for June, but Gillette said it may be moved up as a result of today's high court ruling. The state plans to ask Fogel to lift his court order and permit executions to resume.

Even if Fogel rules quickly for the state, another legal challenge pending in a California appellate court will prevent the state from executing inmates immediately. Gillette said the state would press for a quick resolution in that case, which was unaffected by the Supreme Court decision.

Resuming executions this year "means a lot of things falling our way, but I think that is entirely possible," Gillette said.

He said there are five inmates who have exhausted their appeals and could be executed once the litigation is settled.

Gov. Arnold Schwarzenegger said the high court's ruling supports the state's case to resume executions.

"I will continue to defend the death penalty and the will of the people, and I am confident that California's lethal injection protocol will be upheld," Schwarzenegger said.

California's last execution was of Clarence Allen in January 2006. A month later, state officials -- in a dramatic 11th-hour turnaround -- called off the execution of Michael Morales, who had challenged the constitutionality of lethal injection as cruel and unusual punishment.

Fogel ruled in December 2006 that the state's procedures ran an unacceptable risk of inflicting unnecessarily painful deaths, but said they could be fixed. Five months later, corrections officials, largely behind closed doors, issued a new blueprint for executions, saying the changes would "result in the dignified end of life" for condemned inmates. Morales' lawyers said aspects of the overhaul were worse than the old procedures.

State officials last year began building a larger, better illuminated death chamber designed for lethal injection executions. Gillette said construction has been completed.

The old facility, built in 1937 as the state's gas chamber, was criticized as dimly lit and crowded, relegating executioners outside the death room and making it difficult for them to properly monitor possible problems with the intravenous drug injections.