WASHINGTON – The Supreme Court said Tuesday it would hear a new challenge to the way states carry out executions by lethal injection, possibly banning the use of outdated chemical concoctions that may might cause dying inmates excruciating pain.
Such a ruling would not prohibit lethal injections, but it could force officials in most states to use new or different chemicals so inmates are not subjected to an “unnecessary risk of pain and suffering.”
In December, U.S. District Judge Jeremy Fogel in San Jose blocked California from carrying out executions using the older chemical concoction on the grounds it would cause an unnecessary risk of a painful death.
In July, lawyers for two Kentucky death row inmates appealed to the Supreme Court and cited Fogel’s ruling. They urged the justices to adopt the “unnecessary risk” rule as a constitutional standard for deciding what is “cruel and unusual punishment.”
In a brief order Tuesday, the justices said they had voted to hear this claim early next year. The court’s intervention might halt pending executions until the question is resolved.
When capital punishment was upheld as constitutional more than 30 years ago, states relied on electrocutions, the gas chamber or a firing squad to put an inmate to death. Lethal injections were introduced as the new and supposedly painless method of execution in the 1980s. Today, 37 of the 38 states with the death penalty have adopted this method. Nebraska uses electrocution.
In recent years, medical evidence has suggested that the commonly used, three-chemical compound of sodium thiopental, pancuronium bromide and potassium chloride might be anything but painless. Some experts say that, while pancuronium bromide may paralyze the inmate, potassium chloride causes intense pain while stopping the heart. This evidence has been brought before judges across the country, prompting some to halt executions.
The Kentucky Supreme Court was unconvinced, however. Its judges said they did not see proof of a “substantial risk of wanton and unnecessary pain” and, based on that legal standard, it upheld the continued use of the three-chemical concoction.