Court upholds lethal injection

The 7-to-2 ruling is expected to end a de facto moratorium on executions nationwide.

By Warren Richey | Staff writer of The Christian Science Monitor

from the April 17, 2008 edition

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Washington - Lethal-injection procedures in Kentucky do not violate the Eighth Amendment's prohibition against cruel and unusual punishment.

In a 7-to-2 decision announced on Wednesday, the US Supreme Court upheld the injection procedures used by Kentucky officials to execute condemned prisoners. The majority justices ruled that the existing procedures do not pose a "substantial risk of serious harm."

The action opens the way for an end to a de facto national moratorium on lethal injection executions that has been in place since the fall.

In deciding the case, Baze v. Rees, the high court established a new, more rigorous constitutional test of execution methods under the Eighth Amendment. But the justices declined to embrace a significantly stricter constitutional test that lawyers for death-row inmate Ralph Baze had urged.

They had asked the high court to invalidate Kentucky's three-drug lethal injection protocol because, they said, it posed an unnecessary risk that Mr. Baze would endure an unacceptable level of pain and suffering.

In rejecting that standard, the majority justices said there is no Eighth Amendment requirement that a government-sanctioned execution be pain-free. The Eighth Amendment requires that an execution procedure not involve "a 'substantial' or 'objectively intolerable' risk of serious harm," writes Chief Justice John Roberts in the court's main opinion.

"A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the state's lethal injection protocol creates a demonstrated risk of severe pain," Chief Justice Roberts writes. "He must show that the risk is substantial when compared to the known and available alternatives."

Roberts adds: "A state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."

The plurality opinion, written by Roberts, was joined in full by only two other justices, Anthony Kennedy and Samuel Alito. Justice John Paul Stevens, Antonin Scalia, Clarence Thomas, and Stephen Breyer concurred in the judgment only.

Justices Ruth Bader Ginsburg and David Souter filed a dissent. Justice Ginsburg said she would have remanded the case to the lower courts with instructions to consider whether the failure to include available safeguards in execution procedures creates an "untoward, readily avoidable risk of inflicting severe and unnecessary pain."

The decision stems from a lawsuit filed by lawyers for Baze and a second death-row inmate, Thomas Bowling. The lawyers maintained that the lethal injection protocol used by Kentucky and other states involved too high a risk that personnel might botch the procedure and cause the condemned inmate to experience excruciating pain.

Thirty-six states and the federal government use lethal injection as the preferred method of execution.

Twenty states and the federal government filed friend-of-the-court briefs urging the Supreme Court to uphold Kentucky's lethal-injection program. Opponents of the death penalty urged the high court to set a high standard to reduce the risk of the kinds of botched executions that have taken place in several states. They said Kentucky's lethal-injection protocol did not meet minimal standards used to euthanize dogs and cats.

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