Robert Barnes
The Washington Post
WASHINGTON — Several Supreme Court justices indicated Monday that it may be difficult for them to definitely answer whether or when lethal injections violate the Constitution’s protection from cruel and unusual punishment.

The morning arguments before the court came in a Kentucky case that has led to a halt to executions across the country. A lawyer arguing on behalf of two Kentucky death row inmates told the court that the three-drug protocol used by states and the federal government carries the potential to cause unnecessary and excruciating pain during executions.

“Where does this come from, that … in the execution of a person who has been convicted of killing people we must choose the least painful method possible? Is that somewhere in our Constitution?” Justice Antonin Scalia

“The risk here is real. That is why in the state of Kentucky it is unlawful to euthanize animals in the way it carries out its executions,” said Washington lawyer Donald B. Verrilli Jr. who is representing Ralph Baze and Thomas Bowling in the case, Baze vs Rees.

The main problem, the court was told, is the second drug in the sequence, which paralyzes the muscles. If the inmate is not properly anesthetized, the paralytic could mask whether the condemned is in tortuous pain.

Justice John Paul Stevens said he was “deeply troubled” by the use of the second drug, but that there was nothing in the record in the Kentucky case that raised the issue in a way for the Supreme Court to make a definitive ruling.

Kentucky, he said, seemed to have done a good job of administering the drugs in the state’s only execution by lethal injection.

Justices David Souter and Stephen Breyer also said it might be better to send the case back to lower courts for a comparative analysis of whether the three-drug process carries more risk than an alternative, which uses only amassive dose of a barbiturate.

That alternative was not raised by inmates when a trial court and then the Kentucky Supreme Court affirmed the current method. Other justices said today that such an analysis is not necessary.

Justice Antonin Scalia was the most outspoken in defense of the lethal injection procedure, and said arguments about which procedure would cause the least amount of pain were beside the point.

“Where does this come from, that … in the execution of a person who has been convicted of killing people we must choose the least painful method possible? Is that somewhere in our Constitution?” Scalia asked.

He added at another point: “Mr. Verrilli, this is an execution, not surgery.”

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. also seemed skeptical of claims on behalf of inmates that they were seeking only a humane method of execution.

“Isn’t your position that every form of execution that has ever been used in the United States, if it were to be used today, would violate the Eighth Amendment?” Alito asked.

Verrilli said it was not, but did not say which form would be acceptable.

Lorain County’s lethal injection debate

The U.S. Supreme Court arguments may or may not have an impact on hearings that Lorain County Common Pleas Judge James Burge plans to hold for two accused killers who are challenging the constitutionality of Ohio’s lethal injection process.

Kreig Brusnahan, an attorney for one of the accused, said even if the high court rules that that Kentucky’s lethal injection process — which is virtually identical to Ohio’s – is constitutional, Burge could still go forward with the hearings. The focus then would become whether the state’s procedure for executing condemned inmates violates the Ohio Constitution’s ban on cruel and unusual punishment and a state law that requires executions to be “quick and painless.”

“Whether a penalty is cruel and unusual or not, it doesn’t necessarily translate to it’s quick and painless,” said Brusnahan, who believes the Supreme Court will uphold lethal injection given its current conservative bent.

County Prosecutor Dennis Will declined to speculate on what the Supreme Court might do, but he said the question the justices must address is whether the three-drug cocktail, if used properly, kills quickly and painlessly. Less of an issue constitutionally, he said, is the possibility of mistakes.

“Any method of execution could have something go wrong,” Will said.

If the high court decides the lethal injection process is unconstitutional, it could make Burge’s hearings a moot point as the state’s that use lethal injection would be forced to adopt a new method of execution.
—Brad Dicken

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