Tony Mauro has, "High Court Skeptical Over Lethal Injection Challenge," in Legal Times at Law.com.
The Supreme Court on Monday appeared unconvinced that the lethal-injection procedure used for capital punishment nationwide poses enough risk of pain to inmates that it raises constitutional objections as "cruel and unusual" punishment.
The three-drug "cocktail" used to anesthetize, paralyze and then kill death row inmates is the focus in Baze v. Rees, a Kentucky appeal brought by Ralph Baze and Thomas Bowling, two inmates convicted of separate double murders in the early 1990s. Since the Court granted review in the case in September, a de facto moratorium on executions has taken hold across the country. All but one of the 37 states with capital punishment use lethal injections as a requirement or a choice. (Nebraska uses electrocution.)
Some justices expressed concern about whether enough safeguards are in place to monitor or prevent pain during executions. And Justices Stephen Breyer and David Souter suggested the case should be sent back to lower court for further fact-finding on whether a proposed single-drug alternative would be more efficient in bringing pain-free death.
"I'm left at sea," said Breyer at one point, complaining about the conflicting testimony put before the Court about different procedures.
In the New York Times, Linda Greenhouse reports, "Justices Chilly to Bid to Alter Lethal Injection."
Donald B. Verrilli Jr., the lawyer for two inmates on Kentucky’s death row who are facing execution by the commonly used three-chemical protocol, conceded that theoretically his clients would have no case if the first drug, a barbiturate used for anesthesia, could be guaranteed to work perfectly by inducing deep unconsciousness.
But as a practical matter, Mr. Verrilli went on to say, systemic flaws in Kentucky’s procedures mean that there can be no such guarantee, and the state’s refusal to take reasonable steps to avoid the foreseeable risk of “torturous, excruciating pain” makes its use of the three-drug procedure unconstitutional.
It was here that Mr. Verrilli met resistance from both sides of the court, and the closely watched case appeared to founder in this gap between theory and practice.
Of the 36 states with the death penalty, all but Nebraska, which still uses only the electric chair, specify the same three-drug sequence for lethal injections. The second drug, pancuronium bromide, paralyzes the muscles with suffocating effect. The third, potassium chloride, stops the heart and brings about death, but not before causing searing pain if the anesthesia does not work as intended. The paralyzing effect of the second drug gives the inmate a peaceful appearance and, even if he is in great pain because of inadequacy of the anesthesia, renders him unable to communicate that fact.
And:
Arguing for Kentucky, Roy T. Englert Jr. said the state “has excellent safeguards in place” to ensure the adequacy of the anesthesia. Any risk that the inmate will feel pain is minimal, he told the justices. The one execution that Kentucky has carried out by lethal injection did not cause any known problems.
“The record is very persuasive in your favor, I have to acknowledge,” Justice John Paul Stevens told Mr. Englert.
Justice Stevens then pressed Mr. Englert to justify the state’s use of the second drug, and Mr. Englert replied that it served to protect the inmate’s dignity. The justice was unpersuaded, remaining “terribly troubled,” he said, by the fact that the drug appeared “almost totally unnecessary” except to spare witnesses the “unpleasantness” of seeing the inmate twitch or grimace.
But perhaps sensing that there would not be five votes to eliminate the drug, Justice Stevens suggested a minimalist approach: rule that “Kentucky is doing an adequate job of administering this protocol” and save the underlying question of the protocol’s constitutionality for another day.
Robert Barnes has, "Lethal-Injection Ruling May Have to Wait," in the Washington Post.
In the Chicago Tribune, James Oliphant reports, "Court weighs lethal cocktail."
David Savage writes, "Justices seem unswayed by lethal injection foes," in the Los Angeles Times.
Mark Sherman reports the AP dispatch, "Justices Divided Over Lethal Injection."
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