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.
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."