Court considers lethal injection issues

    Court considers lethal injection issues

    By James Oliphant
    Washington Bureau
    8:28 PM CST, January 7, 2008

    The Supreme Court grappled with detailed questions of medical science and the pharmacology of death Monday, all against the backdrop of a larger, more overriding concern—whether inmates have a constitutional right to an execution that is as painless as possible.

    The justices heard a challenge brought by two condemned Kentucky prisoners contesting the state's lethal injection procedure. The inmates contend that the protocol, which involves the sequential use of three drugs to numb, paralyze and kill the prisoner, carries with it an unconstitutional risk of extreme pain.

    The claim met with hostility from several members of the court, with Justice Antonin Scalia ridiculing it. "This is an execution, not surgery," he griped.

    The inmates, Ralph Baze and Thomas Bowling, argue that Kentucky uses poorly trained personnel to administer the drugs, creating an unnecessary risk of harm. The key to the process is effective application of the first drug, sodium thiopental, a barbiturate that is intended to anesthetize the inmate in advance of the second and third drugs, which can cause excruciating pain otherwise.

    The inmates' lawyer, Donald Verrilli Jr., contended that Kentucky, as an alternative, could simply use a shot of the barbiturate without the other drugs. Death would perhaps take longer, he said, but there would be no risk of pain.

    But that was where Verrilli ran into trouble. Several justices complained that the science behind Verrilli's statement wasn't borne out in the lower court record.

    "There's a risk of harm generally when you're talking about the death penalty," said Justice Stephen Breyer. He said he was bothered by studies he had read that said the single dose wasn't as effective as the three-drug protocol. "I'm left at sea," Breyer said.

    Breyer also was concerned about Verrilli's contention that medical personnel needed to be involved in the executions. (The state forbids it by law.) He noted that doctors consider such work a breach of medical ethics and wondered if anti-death penalty forces were simply trying to halt executions altogether by insisting on a procedure that could not be carried out in a practical way.

    Several justices also seemed uncomfortable with the court deciding whether a particular method of execution is constitutional. Scalia pointed out that the court had never struck down use of hanging, a firing squad or the electric chair. (The court last ruled on capital punishment methodology in 1878.) Justice Samuel Alito asked Verrilli if he was claiming that such earlier forms of execution would now be considered a violation of the 8th Amendment's ban on cruel and unusual punishment because they carry a risk of pain.

    Thirty-six states use a similar procedure to Kentucky's, and a de facto moratorium on executions has in been in place nationwide since the court agreed to hear the Kentucky case.

    Arguing for the state, lawyer Roy Englert conceded that if sodium thiopental was administered incorrectly, the prisoner would indeed suffer extreme pain. But, he said, the state had training and procedures in place to guard against it. He said that close monitoring of an inmate by medical professionals during the execution wasn't necessary because if the anesthetic didn't work properly, the inmate "would be awake and screaming."

    But critics of the three-drug protocol say the second drug, pancuronium bromide, is a muscle-paralyzing agent that prevents inmates from alerting authorities to their pain. And Englert was pushed by Justice John Paul Stevens as to why the paralyzer was even necessary.

    "It does bring about a more dignified death," Englert said, "for the inmate and the witnesses."

    "The dignity of the process outweighs the risk of excruciating pain?" Stevens shot back.

    Stevens conceded that the lack of evidence in the record about potential risks inherent in Kentucky's procedure—the state has executed only one prisoner since it instituted the lethal injection regime—meant that it was unlikely the court would rule against the state. But, Stevens said, "I'm horribly troubled by the fact that this second drug causes a risk of excruciating pain."

    That left the justices in a bit of a bind. At the end of the argument, it appeared there are two roads the court could take. The first involves sending the case back to the original trial court in Kentucky for further proceedings on the state's procedures, including whether there might be a better pharmacological alternative.

    That idea was not palatable to Scalia, who complained that it would result in a "nationwide cessation of executions while the trial court finishes its work."

    The second would be for the court to rule in favor of Kentucky, holding that its procedures are constitutionally acceptable. That, however, warned Justice David Souter, would simply invite another challenge from a state such as Florida that has a more extensive history involving flawed executions.

    "We want some kind of definitive decision here," Souter said.

    Copyright © 2008, Chicago Tribune
  2. If we must have the death penalty, I honestly don't see what's wrong with a swift bullet to the head. I find nothing inhumane about that, and it's hell of a lot cheaper than having a doctor or nurse administer some kind of drug cocktail.
  3. or...eye for an eye. Savage murderers get killed the same way their victims were.
  4. The thing that a lot of people don't understand about capital punishment in this country is that the majority of the people on death row are POOR. Being sentenced to death should not be dependent on whether you have the money for a good lawyer or not. There is something very wrong with a system when you have statistics like this, IMO.
  5. Or just being sent to prison. Have you read the Prison Industrial Complex by Angela Davis?? It's an interesting read. Not terribly long, either.
  6. i just started a sociology class on criminal punishment in America. i think it's going to be fascinating, because it's going to be about things like what Roo brought up.

    I'm anti-death penalty, honestly, but our constitutional rights guarantee us protection from cruel and unusual punishment, and it's the burden of the government to uphold those rights for EVERYONE, not just those that society deems worthy (or those that are wealthy enough to afford good lawyers). take that how you will.
  7. I'm against the death penalty. Granted, there are some criminals who commit certain crimes, and I end up thinking, "Okay, THAT person deserves to die."

    I know I can't have it both ways and I'd rather not have it at all.
  8. I am also anti-death penalty. But while we have it, I don't understand why we obsess over this "cruel and unusual part." I am still genuinely curious what about a simple bullet to the head qualifies as "cruel and unusual."

    I don't understand why we spend so much time, effort and money in executing people who (assuming they're actually guilty and deserving of punishment, which is entirely another issue of socioeconomics I'm not educated enough to elaborate on) are slated to die. Death is death: as long as we're not quartering them or dipping them in tar and feathers, I don't see the problem. I guess the question is: at what point does your suffering become a matter of the United States Constitution? Five minutes? Ten? Again, all this could be solved by a well-placed bullet.

  9. On a side note, I actually met Angela once,I think it was in the late 60s before her famous trial. I think she was living in Oakland at the time or was spending time there. My grandfather owned a small business in that area and she used to be one of his customers. He called her "angie". I remember I was there once with my grandpa and she came in. I remember she had this enormous afro, I thought she looked very glamorous. She was nice to me too and I remember her hugging me. I was pretty little then. I was dying to touch her afro but didn't. :p Later the FBI came to question my grandfather about her. I recall him telling me later that he told the Special Agent that 'angie' was a 'nice girl and couldn't possibly be involved with the black panthers?'
    I remember when she went on trial my grandpa would remind me that I'd met her, like she was a movie star. I miss my Grandpa! :love:

    Her then:

    And now:
  10. I think there are plenty of people who deserve death as a just outcome. I'm just not sure about the ability of the State to punish the right people all of the time. Sometimes innocent people are convicted of crimes. For that reason alone, the limitations that human error place on the correctness of the outcome and the risk of the execution of an innocent person, I don't support the death penalty in practice.

    I do think that American courts in general show more respect to the law-abiding citizens than, for example, Australian courts. In Australia, the sentences that are handed down for violent crimes are an absolute joke. And some of the comments Australian judges make, as though it was the victims fault for being there are the time. Pathetic. :throwup:
  11. Cool! She came to OSU a year ago to give a talk, it was awesome! It was totally standing room only. She's definitely not changed at all over the years.

    Amanda, are you reading the book I mentioned in your class? We read it in my philosophy 412 class 5 years ago, it was a class dedicated to Martin Luther King Jr. and spun off into a section about Hip Hop Culture and then the Prison industrial complex...