The most contentious case facing the U.S. Supreme Court will be heard just a month from now, on Jan. 7.
The justices have agreed to establish the legal standard the various states must meet when executing convicted murderers by lethal injection.
In accepting a Kentucky case (Baze vs. Rees), the court acknowledged that its “cursory language” in prior decisions have left the lower courts in a “haphazard flux” while determining when a particular form of execution violates the “cruel and unusual” prohibition contained in the Eighth Amendment to the U.S. Constitution.
The Supreme Court’s earlier rulings have referred to “wanton infliction of pain,” “excessive pain,” “unnecessary pain,” “substantial risk of wanton and unnecessary pain,” as well as other descriptions. So it is little wonder that at least half of those facing imminent execution by lethal injection have filed suits challenging the method of their execution. The court virtually invited such challenges in a decision made more than a year ago. The result is a virtual moratorium on all executions.
The two men involved in the current case were convicted in separate crimes: one for shooting two police officers in the back, the other for shooting a married couple and fleeing the scene after his car had rammed into their vehicle.
Under Kentucky law, both men had the option of accepting death by electrocution but chose instead to challenge the state’s lethal injection procedure. The Kentucky Supreme Court rejected their arguments in a 10-page decision that is remarkable for its clarity and directness. The court noted that in prior cases, it has upheld the constitutionality of electrocution and lethal injection. It evaluated the claims of the petitioners that the state’s execution protocols created a “substantial risk of wanton and unnecessary infliction of pain, torture or lingering death.” It also examined whether they “shocked the moral sense of reasonable men” or were “contrary to evolving standards of decency that mark the progress of a maturing society.”
The “evolving standard of decency” argument is especially interesting. Under this argument, the courts (including the U.S. Supreme Court) are being asked to find that the public is generally offended by the notion of a lethal injection. This claim is hard to square with the fact that 37 states, including Colorado, have provided for the death penalty and almost all of them choose lethal injection as the preferred method — precisely because it is considered the most humane method available.
It’s inconceivable that the Supreme Court could overlook this fact and somehow declare that the “evolving standards” evolved so fast they weren’t noticed by the legislatures in three- fourths of the states.
Much more likely is a ruling on what the legal standard should be. Kentucky will argue that states be held to the “substantial risk” standard. Adoption of this standard would not require states to avoid “all pain” or “all risk of pain.”
Opponents of the death penalty would be happy, of course, if the Supreme Court decision left the lethal injection procedure in place but made its enforcement impossible. This outcome could be achieved by prolonged litigation over the proper chemical content of the lethal injection or a court-imposed requirement that certain medical personnel attend state executions — creating mischief if they sensed a threat to ethical standards.
For most Americans the question presented by the current case is remarkably simple: If the death penalty is constitutional, when will the court get around to certifying a means of imposing it?
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears twice a month.
