WASHINGTON — The Supreme Court appeared divided Monday over whether the drugs commonly injected to execute prisoners risk causing excruciating pain in violation of the Constitution.
Several justices indicated a willingness to preserve the three-drug cocktail that is authorized by three dozen states that allow executions. Such a decision would allow lethal injections, on hold since late September, to resume quickly.
Justice Antonin Scalia said states have been careful to adopt procedures that do not seek to inflict pain and should not be barred from carrying out executions even if prison officials sometimes make mistakes in administering drugs.
“There is no painless requirement” in the Constitution, Scalia said.
Chief Justice John Roberts and Justice Samuel Alito also indicated their support for the states’ procedures.
Other members of the court, who have raised questions about lethal injection in the past, said they are bothered by the procedures used in Kentucky and elsewhere in which three drugs are administered in succession to knock out, paralyze and kill prisoners.
The argument against the three-drug protocol is that if the initial anesthetic does not take hold, a third drug that stops the heart can cause excruciating pain. The second drug, meanwhile, paralyzes the prisoner, rendering him unable to express his discomfort.
“I’m terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain and seems to be almost totally unnecessary,” said Justice John Paul Stevens.
Justice Anthony Kennedy, who often plays a decisive role on the closely divided court, gave little indication of his views.
The case before the court comes from Kentucky, in which two death-row inmates are not asking to be spared execution or death by injection. Instead, they want the court to order a switch to a single drug, a barbiturate, that causes no pain and can be given in a large enough dose to cause death.
At the very least, they are asking for tighter controls on the three-drug process to ensure that the anesthetic is given properly.
A decision should come by late June.
Justice Stephen Breyer seemed to capture the discomfort of the court, which has upheld the constitutionality of capital punishment.
“There is a risk of human error generally where you’re talking about the death penalty, and this may be one extra problem,” Breyer said. “But the question here is can we say that there is a more serious problem here than with other execution methods?”
Donald Verrilli, a Washington lawyer who is a veteran of capital cases, offered the court examples of executions in California and North Carolina in which inmates appeared to suffer pain as they were being put to death.
Former death-row inmate heading home to Scotland
OTTAWA, Ohio — A British citizen who spent two decades on Ohio’s death row was released Monday after pleading no contest to charges related to a fire that killed a 2-year-old girl.
Ken Richey walked free for the first time since he was convicted of setting a northwest Ohio apartment fire that killed the toddler in 1986.
“It’s great to finally be free at long last, and I’m looking forward to going home to Scotland,” said Richey, wearing a blue, yellow and green Scottish cap called a glengarry. “It’s been a long time coming.”
Prosecutors approved the deal after an appeals court overturned Richey’s conviction and death sentence last year.
The deal lets Richey, a dual U.S.- British citizen, go home to Scotland without admitting that he had anything to do with the fire.
Richey pleaded no contest to attempted involuntary manslaughter, child endangering, and breaking and entering.
As part of the deal, Richey, 43, agreed to exit the country within a day, and he plans to leave for Scotland today.
Richey was convicted of setting a fire that killed 2-year-old Cynthia Collins, and he stayed on death row until a federal appeals court determined in August that his lawyers mishandled his case.
Robert Collins, the father of the toddler, told the judge that he wishes his daughter “could appeal her death and come back to life,” according to a statement.
