Linda Greenhouse writes, "Justices Uphold Lethal Injection in Kentucky Case," in the New York Times.
The legal question was what standard to apply in evaluating the risk. The appeal, brought by two men on Kentucky’s death row, Ralph Baze and Thomas C. Bowling, each convicted of double murders, asked the court to find the Kentucky protocol unconstitutional if it imposed an “unnecessary risk” of error in light of potential alternatives. Chief Justice Roberts, applying the more rigorous standard he outlined, said that the risks identified by the inmates were not “so substantial or imminent as to amount to an Eighth Amendment violation.”
While most states use a method similar to Kentucky’s, a number of them have adopted additional safeguards to ensure that an inmate is properly anesthetized by the initial drug in the sequence, a barbiturate, before administration of the second two, which paralyze the muscles and stop the heart.
In fact, Justice Ruth Bader Ginsburg, in a dissenting opinion, listed several of these states and described the extra steps they have taken, to show that Kentucky could and should be required to do a better job. The states she named were Alabama, California, Florida, Indiana and Missouri. The other dissenter, Justice David H. Souter, signed her opinion.
The court issued its decision on the same morning that it heard arguments in another closely watched death penalty case, a challenge to Louisiana’s application of capital punishment for the crime of child rape. The two men on Louisiana’s death row for raping young girls are the only two people in the country who have been sentenced to death for a crime in which death did not result.
In the Kentucky case, there was considerably less agreement among the justices than the vote of 7 to 2 might indicate. Six of the seven justices in the majority wrote separate opinions. The chief justice’s opinion was signed by only two others, Justices Anthony M. Kennedy and Samuel A. Alito Jr. Justice Kennedy was the only member of the majority who did not write separately.
"Supreme Court Upholds Kentucky's Lethal Injections," is Tony Mauro's report in Legal Times.
Even some members of the majority warned that the decision Wednesday wouldn't end disputes over lethal injection.
"Far from putting an end to abusive litigation in this area ... today's decision is sure to engender more litigation," Justice Clarence Thomas said. "We have left the states with nothing resembling a bright-line rule."
Thomas predicted challenges over when the risk of harm posed by the procedure becomes "substantial" and when a reduction of the risk is "significant."
Kennedy and Justice Samuel Alito Jr. joined the Roberts opinion. They agreed that the Constitution does not require totally pain-free procedures, but did acknowledge that under certain circumstances the risk of pain could be unconstitutional.
For example, Roberts wrote that an insufficient dose of sodium thiopental -- the first drug used in the procedure, which renders the inmate unconscious -- would pose "a substantial, constitutionally unacceptable risk of suffocation" caused by the subsequent drugs.
Roberts also seemed to invite states to improve on the current procedures. "Our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment." A state's failure to adopt readily available and accepted ways of reducing the risk of severe pain could also be unconstitutional, Roberts said.
In the Washington Post, Robert Barnes writes, "Justices Uphold Lethal Injection Procedure." Barnes also writes a sidebar, "In Reversal, Stevens Says He Opposes Death Penalty."
Justice John Paul Stevens was one of the co-authors of the Supreme Court's 1976 decision reinstating the death penalty, but he announced yesterday that he now believes capital punishment is unconstitutional.
The court's longest-serving justice, who will turn 88 on Sunday, said his experience on the court has convinced him that decisions by judges and legislators to retain the death penalty are born of "habit and inattention," rather than an "acceptable deliberative process" that balances costs with risks.
"The time for a dispassionate impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived," Stevens wrote in an opinion that nonetheless concurred with the court's decision to uphold Kentucky's method of lethal injection.
Stevens said his vote was based on "respect" for the court's precedents that hold capital punishment is constitutional.
In the past, other justices -- William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun -- have declared their opposition to capital punishment. Stevens said he would "respect precedents that remain a part of our law."
Joseph Thai, an Oklahoma University law professor and former Stevens clerk, said Stevens's statement is the culmination of "the evolution of his position on the death penalty over the last 30 years or so."
"Nonetheless, it's still a pretty big step for him."
James Oliphant has, "Stevens new foe of death penalty," in the Chicago Tribune.
Experts were split on whether the court's opinion in the lethal injection case even pulled the curtain down on that avenue of litigation, just one among many distinct and continual attacks on capital punishment's constitutionality.
"The door is not closed," said Elisabeth Semel, a law professor at the University of California, Berkeley, who helped bring the challenge to Kentucky's lethal injection procedures. Semel said the court's opinion made it clear that states can be forced to institute alternative lethal injection procedures if it can be proved they can alleviate a substantial risk of pain.
That may have been one reason that Stevens, who will turn 88 on Sunday, in a sense threw up his hands and said "enough" even as he concurred with the majority in a nod toward respecting the court's prevailing view in favor of the death penalty. Stevens wrote that when the court agreed to hear the Kentucky case he "assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not."
Then he went further, saying that the death penalty was no longer meeting any of the societal aims the court laid out when it reinstituted the sanction in 1976, after a four-year moratorium.
"State-sanctioned killing," he said, is becoming "more and more anachronistic."
The Chicago native, who was named to the court by President Gerald Ford in 1975, wrote that modern, lengthy prison sentences had achieved the goal of preventing the offender from committing further crimes, and said that, to his satisfaction, researchers had yet to prove that the death penalty deterred others.
That left retribution as the sole rationale for capital punishment, and there Stevens found a paradox. He said the court was now working to make executions as relatively painless as possible. "[B]y requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim."
In the Los Angeles Times, David Savage has, "Supreme Court finds lethal injections a humane means of execution."
Since the 1970s, most of the 36 states that carry out the death penalty have abandoned electrocutions or the gas chamber and switched to lethal chemicals. Most rely on a three-chemical mix that includes an anesthetic, a paralyzing drug and a heart-stopping agent.
In 2005, a British medical journal, the Lancet, raised an alarming prospect. It said dying inmates may experience searing pain from the heart-stopping chemical while lying paralyzed on the gurney if prison officials fail to give the proper dose of sodium thiopental, the anesthetic, better known as sodium pentothal.
Defense lawyers and death penalty opponents seized on this study and cited it as a reason to stop executions throughout the U.S. Their lawsuits revealed that state officials, instead of studying the effectiveness of the three-chemical combination, had relied on the fact that other states had adopted this approach.
They also showed that doctors and others with medical training were not on duty during executions to make sure the drugs were injected properly. Because of ethical concerns, most physicians will not participate in an execution.
In addition, the drugs themselves were suspect. At least 23 states, including Kentucky, have prohibited veterinarians from using the paralytic drug pancuronium bromide to put horses and other animals to death.
"It is unseemly -- to say the least -- that Kentucky may well kill [its condemned prisoners] using a drug that it would not permit to be used on their pets," Stevens said.