Court upholds lethal injection

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

from the April 17, 2008 edition

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At the heart of the Baze case was a hypothetical scenario vividly portraying what Baze might experience if the execution protocol was not followed precisely.

Under the three-drug protocol used in Kentucky, the first drug administered is a barbiturate that is intended to render the inmate unconscious. Next, the inmate receives a dose of a drug that causes total paralysis. Finally, potassium chloride is injected to stop the heart.

The concern is that if the first drug fails to work properly the inmate will remain mentally aware as the other drugs are injected. Medical experts agree that a condemned inmate will endure unbearable pain and suffering from the injection of the potassium chloride. But because he has just been paralyzed by the second drug, the inmate will be unable to show any sign of distress. To an observer, the inmate may appear to have gone peacefully to sleep. But some experts say the inmate may, in fact, be fully conscious and in agony during his final moments of life.

At least two states, Missouri and Florida, have taken steps to prevent this scenario by requiring verification that the inmate is unconscious prior to the administration of the other two drugs. Critics say properly trained medical professionals are needed to ensure the procedure is as pain-free as possible. But ethics codes bar medical professionals from participating in executions.

In his plurality opinion, Roberts said Kentucky had established a number of safeguards to prevent botched executions. They included requiring members of the injection team to have at least one year of professional experience as a certified medical assistant or paramedic. In addition, the state requires the warden and deputy warden to be present in the execution chamber and available to watch for problems.

"In light of these safeguards, we cannot say that the risks identified by [the inmates] are so substantial or imminent as to amount to an Eighth Amendment violation," Roberts writes.

"Much of [the inmates'] case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures," he writes. But the Eighth Amendment does not require the invalidation of execution methods whenever a slightly or marginally safer alternative is identified.

"Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining 'best practices' for executions," the chief justice writes.

In his concurrence, Justice Stevens says he supported the plurality result because it was in line with Supreme Court precedent. But he urged his fellow justices – and the nation – to begin a reexamination of the death penalty."The time for dispassionate, impartial comparison of the enormous costs that death-penalty litigation imposes on society with the benefits that it produces has surely arrived," he writes.

Justice Stevens said he believes the high court's decision in the Kentucky case will spark further litigation. "Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol," Stevens writes, "but also about the justification for the death penalty itself."

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