WASHINGTON — The Supreme Court on Wednesday ruled that the most common method of lethal injection used to execute condemned prisoners is constitutional, a decision sure to restart the nation’s dormant death chambers. But the court’s splintered reasoning also seems to make likely more challenges to the way capital punishment is administered in the United States.
The justices voted 7-2 that the three-drug combination used by Kentucky, similar to that used by the federal government and 34 other states, does not carry a risk of substantial pain so great as to violate the Constitution’s ban on cruel and unusual punishment.
“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual,” Chief Justice John Roberts wrote.
The decision’s most likely immediate effect is to dissolve the de facto moratorium on executions that has taken root since the court announced in September that it would decide the case, Baze vs. Rees.
Virginia Democratic Gov. Timothy Kaine lifted the hold he had placed on capital punishment just hours after the decision was announced.
Debate still open
But commentators as diverse as Amnesty International and Justice Clarence Thomas predicted that the divided court’s decision is, in Thomas’ words, “sure to engender more litigation.”
“I assumed that our decision would bring the debate about lethal injection as a method of execution to a close,” wrote Justice John Paul Stevens, who used the occasion to announce that his 33 years on the court has led him to believe that capital punishment is unconstitutional. “It now seems clear that it will not.”
That is because even though seven justices — including Stevens, who said the court’s precedents required his consent — found Kentucky’s procedures constitutional, a majority could not agree on the proper standard with which to judge execution practices.
Roberts said they should be examined to determine whether they pose a “substantial risk of serious harm,” rather than the “unnecessary risk” proposed by lawyers for two men on Kentucky’s death row.
But only Justices Anthony Kennedy and Samuel Alito agreed with him.
Thomas, joined by Justice Antonin Scalia, rejected the test and said a method of execution violates the Eighth Amendment’s cruel and unusual punishment prohibition “only if it is deliberately designed to inflict pain.”
Justice Stephen Breyer joined Stevens in saying Kentucky’s process met the court’s standards but said he disagreed with Roberts’ test as well.
Justice Ruth Bader Ginsburg, joined by David Souter, dissented, saying execution methods must not create an “untoward, readily avoidable risk of inflicting severe and unnecessary pain.” She said she could not be sure Kentucky had taken all necessary safeguards.
In all, seven of the nine justices wrote to explain their decisions.
After issuing the decision Wednesday, the justices heard arguments in Louisiana’s attempt to execute a man for raping his 8-year-old stepdaughter.
The court in 1977 held that it was a violation of the Eighth Amendment to execute someone who raped an adult woman. But Louisiana and four other states have passed laws saying that capital punishment for the rape of a child is different.
Its death row has two men convicted of the offense; they are the only ones of more than 3,300 nationwide awaiting execution whose crimes did not include homicide.
In the Baze case, the justices were considering conflicting lower court opinions on lethal injection. At least 30 states, including Kentucky, use the same combination of three drugs to execute prisoners: a drug to induce unconsciousness; a drug to paralyze; and a drug that causes cardiac arrest.
An attorney for the petitioners, who were backed by other death-row inmates around the country, argued that if the first drug does not work, the second induces a “terrifying, conscious paralysis” and the third causes an “excruciating burning pain as it courses through the veins.”
The Kentucky inmates were not asking to be spared execution or injection. Rather, they wanted the court to order Kentucky to switch to a single, massive dose of barbiturates — the same method used to euthanize animals.
But Roberts said that “a condemned prisoner cannot successfully challenge a state’s method of execution merely by showing a slightly or marginally safer alternative.” Instead, he must show an alternative procedure must be “feasible, readily implemented and in fact significantly reduce a substantial risk of severe pain,” Roberts wrote.
That is the test that Stevens and Thomas said could open the door to more challenges.
1 on Colo. death row
In Colorado, lethal injection is the sole method of execution. But the state has executed only one inmate — Gary Lee Davis — in 40 years. Davis was executed in 1997, 11 years after he kidnapped and raped 33-year-old Virginia “Ginny” May near her Byers home and then shot her 14 times with a .22-caliber rifle.
Colorado now has one person on death row — Nathan Dunlap — who has filed an appeal of his death sentence in U.S. District Court. Dunlap killed four people in December 1993 at a Chuck E. Cheese restaurant in Aurora.
