A quarter-century has elapsed since the U.S. experienced as long a pause in executions as the one the Supreme Court has occasioned with its current examination of lethal injections.
No one has been put to death since Sept. 25 and the earliest that executions are likely to resume is in the summer. Forty-two people were executed in 2007, the lowest total in 13 years. Last month, New Jersey became the first state in four decades to abolish the death penalty.
But when the justices return from their holiday break and hear arguments Monday in a lethal injection case from Kentucky, their questions are unlikely to focus on whether capital punishment or even the method of lethal injection is right or wrong.
The two death row inmates whose challenge is before the court are not asking to be spared execution or death by injection. Their argument, at its most basic, is that there are ways to get the job done relatively pain-free.
So the court could delve into a highly technical, almost medical, discussion of how executions work in practice:
- Does the condemned prisoner receive enough anesthesia to knock him out?
- Do the people who insert intravenous lines know what they are doing?
- Is it best to use a combination of three drugs?
- Would it work better to deliver a fatal overdose of barbiturates? That is the method used by terminally ill people in Oregon and by veterinarians in most parts of the country who put animals to sleep.
The court also will be weighing what risk of pain is acceptable for prisoners who are being put to death for horrendous crimes and what standard judges should use in evaluating the risk.
Cruel and unusual punishment?
Ralph Baze and Thomas Clyde Bowling Jr. were convicted of murder and sentenced to death by juries in Kentucky. Baze killed a sheriff and a deputy who were attempting to arrest him. Wounded and lying face down, the deputy was killed with a shot to the back of the head at close range.
Bowling shot and killed a couple and wounded their 2-year-old son outside their dry-cleaning business. A motive never has been clear.
The two men, in a 2004 lawsuit, claimed that lethal injection as practiced by Kentucky amounts to cruel and unusual punishment in violation of the Eighth Amendment. The state's procedures — similar to those on the books in three dozen states — "create a significant and unnecessary risk of inflicting severe pain that could be prevented by the adoption of reasonable safeguards," their lawyers argue in court papers.
The lawyers say other states routinely botch executions by using poorly trained people, complex procedures and even dim lighting that makes it hard for the executioner to see what he is doing. The procedures in many states are kept secret, making challenges to the procedures difficult.
Florida and Ohio had recent executions in which workers had trouble inserting the IV lines that are used to deliver the drugs. As a result, the executions took much longer than usual, with strong indications that the prisoners suffered severe pain in the process.
Unlike those well-publicized cases, however, Kentucky's only experience with lethal injection did not present any obvious problems.
The prisoners' lawyers, however, say that focusing on an individual execution obscures the larger point. Repeated executions "using the three-drug formula and Kentucky's inadequate procedures would produce torturous deaths in at least some cases," they say.
Bush administration backs Kentucky
The state defends its procedures, which Kentucky courts have upheld. "Kentucky seeks to execute them in a relatively humane manner and has worked hard to adopt such a procedure," Kentucky Attorney General Gregory Stumbo said.
The Bush administration, backing the state, argues that because the Supreme Court has said capital punishment is constitutional, there must be some method for carrying it out. "Were it otherwise, the result would be to render capital punishment constitutional in theory, but unconstitutional in practice," Solicitor General Paul Clement said.
The case could come down to an examination of the three drugs that 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. But that pain would be masked by the second drug that paralyzes the prisoner and renders him unable to express his discomfort.
Veterinarians have sided with the prisoners to point out that Kentucky requires animal euthanasia to be done by injecting a single drug, a barbiturate that causes minimal pain.
If the court decides that the three-drug mix is problematic, it could order states to develop a different procedure.
A decision that reaches so deeply into the mechanics of execution probably would mean a lengthy delay before executions resume.
The case is Baze v. Rees, 07-5439.