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At high court, no rush to resolve conflicts over lethal injection

By Staff writer of The Christian Science Monitor / May 23, 2006



The US Supreme Court has declined an invitation to examine one of the hottest issues in litigation over capital punishment: the constitutionality of lethal injection as a means to carry out death sentences.

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The court's refusal to weigh in now comes amid a growing number of death-row lawsuits challenging the method of execution. It also comes amid a growing patchwork of conflicting rulings on various aspects of the lethal-injection process by state and federal judges.

Some legal analysts had thought the high court might use a lawsuit filed by Tennessee death-row inmate Abu-Ali Abdur'Rahman as a vehicle to clarify the issue for the entire nation. Instead, the court on Monday, without comment, let stand a Tennessee Supreme Court decision that the state's use of lethal injection comports with contemporary standards of decency as required under the US Constitution's Eighth Amendment.

Legal analysts said it appears the high court does not want to rush into deciding the lethal-injection issue.

"It means they will take this issue piecemeal at their own pace," says Richard Dieter of the Death Penalty Information Center in Washington. The justices may want to see how ongoing cases over the issue work their way through the lower courts before weighing in, he says.

But uncertainty over the state of the law, Mr. Dieter adds, is leading to different outcomes in similar cases. Since late January, courts have granted 11 stays in death-penalty cases, while other judges permitted 15 executions to take place. "There is a lot of confusion and arbitrariness out there with people getting stays and some getting executed," Dieter says.

At issue in the appeal was whether the three-drug protocol used by Tennessee and most other states with capital punishment creates an unacceptable risk that a condemned inmate may be subject to intense pain and suffering during the execution.

Lawyers for Mr. Abdur'Rahman said in their court brief that a botched lethal injection could result in a form of torture.

Tennessee corrections officials have said their procedures are well established and risk of a mistake is remote. The Tennessee Supreme Court agreed, ruling that there was no evidence in the record that the procedures used in Tennessee had resulted in the problems feared by Abdur'Rahman.

A federal judge in California has scheduled an evidentiary hearing in September to investigate that state's lethal-injection protocol. In the meantime, executions in California have been halted pending the outcome of the litigation.

Lethal injection is already on the high court's docket. By the end of June, the justices are expected to decide a Florida case examining whether an inmate's lawsuit challenging a method of execution (lethal injection) should be barred by strict limits on multiple appeals under the habeas statute or can instead be filed under the more permissive rules applying to civil rights suits.

In contrast, Abdur'Rahman's case dealt with the more central issue of whether lethal injection violates the Eighth Amendment prohibition of cruel and unusual punishment.

"Simply exposing [Abdur'Rahman] to the fear of an execution by torture inflicts ongoing suffering upon him well before the execution itself," wrote Washington lawyer Tom Goldstein in his brief urging the court to hear the case.

At least four justices must agree to hear a case at the Supreme Court. But because those votes take place in a private conference, it is not known how many justices, if any, voted to hear this one.

In urging the high court to take up the case, Mr. Goldstein told the justices that one of the chemicals used in lethal injections is banned for use when euthanizing pets and other domestic animals. Thirty states, including Tennessee, have barred use of the chemical Pavulon because of the risk that it might lead to an animal's painful death.

Under the three-drug process in lethal injections, the condemned inmate first receives a dose of sodium pentothal, which is meant to produce an anesthetic effect. Next Pavulon is injected. Pavulon is described as a neuromuscular blocking agent that paralyzes the inmate. Finally, two doses of potassium chloride are injected to stop the inmate's heart.

The central concern of those challenging the lethal-injection process is that if the first chemical is not properly introduced so that the inmate is not thoroughly anesthetized, the injection of the second two chemicals will be extraordinarily painful. But because the Pavulon has paralyzed the inmate, he or she will be unable to show any signs of distress or pain.

The issue for the court is whether the risk of a botched execution is substantial enough that it violates the constitutional guarantee against cruel and unusual punishment.

Critics of the protocol say that the process should be simplified by using better chemicals and that executions should be supervised by medical professionals.

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