Tuesday, January 8, 2008

High court hears arguments over lethal injections

Some say one drug is enough


WASHINGTON - The Supreme Court on Monday heard starkly different descriptions of Kentucky's method of putting people to death, with a lawyer for a condemned prisoner asserting there is an unacceptable risk of agony and a lawyer for the state saying nothing could be further from the truth.

"The risk here is real," Donald Verrilli, the lawyer for Ralph Baze, the death-row inmate, told the justices, noting that the three-drug protocol that Kentucky uses in executions is illegal for euthanizing animals.

Verrilli argued that there are too many things that can go wrong in Kentucky executions, largely because poorly trained people are carrying them out, creating too much risk that a prisoner will die in great pain even though he is unable to cry out.

But Roy Englert, arguing on behalf of the state, said there is very little risk of that happening. "Kentucky has excellent safeguards in place," he said.

A technician with broad experience inserting needles in inmates' arms in a medical setting - "This person places 30 needles a day in the prison population" - attaches the needles to the condemned person, then joins other participants in "the next room, watching carefully to see nothing goes wrong," Englert said.

The issue in the case of Baze v. Rees is not the constitutionality of lethal injection as such, but a more procedural question: How should judges evaluate claims that the particular combination of drugs used to bring about death causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution?

Several members of the court appeared to be troubled by the questions raised in the case, as they heard Verrilli suggest that Kentucky should use a single, overwhelming dose of a barbiturate to put prisoners to death, and Englert counter-argue that a single-drug procedure has never been tried, and that Kentucky's three-drug procedure is effective and humane.

Baze, one of two Kentucky death-row inmates challenging the state's procedure, was condemned for killing a sheriff and deputy sheriff who were trying to serve him a warrant. Executions have been halted in the United States since last September as officials in states that have capital punishment have awaited a decision in Base v. Rees (John D. Rees is the Kentucky corrections commissioner).

Consequently, the case is among the most closely watched in the high court's current term. The Bush administration has sided with the state of Kentucky.

Verrilli cited several botched executions in recent years as evidence that the usual three-drug protocol is anything but foolproof. One drug is supposed to render the condemned unconscious, another is supposed to paralyze him, and the third is supposed to stop his heart.

Why not just use a huge dose of barbiturates, Verrilli said. That way, if something goes wrong, the prisoner will feel no pain, since he will simply be asleep and can be sent to a peaceful death with more barbiturates.

But Englert said "it takes a very long time to death with a single-drug protocol," and that the "botched executions" mentioned by Verrilli were ones in which the veins of the condemned could not be found, or the inmate's body went into contortions - not executions in which the inmate felt pain.

Several justices seemed to be grappling for some kind of factual standard to evaluate the questions before them, and complaining about the absence thereof. But several members of the court also voiced concern that, if the questions in Baze v. Rees are not answered, other inmates will raise challenges.

"We'll be right back here in a year or 18 months," Justice John Paul Stevens said.

Justice Antonin Scalia noted that execution methods that have fallen out of use - the electric chair, the firing squad, the hangman's noose - have been abandoned in part because of fears that they were not pain-free.

But where is it written that the state must choose "the least painful method," Scalia demanded. "Is that somewhere in the Constitution?"

At another point, Scalia said, "This is an execution - not surgery."


The legal arguments over the use of lethal injection in executions affects Florida death row inmates, too.

The U.S. Supreme Court issued a stay in the execution of Mark Schwab until it rules on the Kentucky case. Schwab was convicted of raping and killing 11-year-old Junny Rios Martinez.

There was already controversy in Florida in the execution of Angel Diaz because needles were not inserted properly and it took longer for him to die than usual under the procedure.

Schwab is one of three prisoners in Florida who had active death warrants when his stay was granted.

The court's decision could also delay the execution of Ian Lightbourne, 47, who was sentenced in 1981 in the slaying of Marion County horse breeder Nancy O'Farrell.

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