Court hears case on drugs used in lethal injections
WASHINGTON – The Supreme Court has never outlawed a method of execution. The justices on Monday sounded skeptical about starting now.
The court heard arguments challenging the kind of lethal injection used in Kentucky and all but one of the three dozen states with the death penalty. Death row inmates contend that the three drugs used in an execution and the way they are administered creates a risk that a prisoner will suffer severe pain in violation of the Constitution.
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?”
Several justices indicated a willingness to preserve the three-drug cocktail that is most commonly injected in Kentucky and elsewhere. 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.
Justice David Souter urged his colleagues to take the time necessary to issue a definitive decision about the three-drug method in this case, even if it means sending the case back to Kentucky for more study by courts there.
Scalia, however, said such a move would mean “a national cessation of executions” that could last for years. “You wouldn’t want that to happen,” he said.