High Court Is of Two Minds on Lethal Injection

The Supreme Court justices sounded split along conservative and liberal lines Wednesday during arguments on whether injections may be a cruel and painful method of execution.

The justices are not likely to decide that ultimate question in the Florida case at hand, which focuses on a narrow issue. But the arguments offered insights into how the high court viewed the issue.

The justices took up the case to settle a procedural matter: Can a state death-row inmate who has appealed a conviction and lost in the federal courts file a new, last-minute claim in federal court to challenge the state’s method of execution?

Chief Justice John G. Roberts Jr. and Justice Antonin Scalia suggested the answer should be “no.” Otherwise, inmates would use the new lawsuits to further delay their executions, they said. The chief justice said he was “willing to bet” that if Florida changed its method of execution, defense lawyers would immediately challenge that as well.

In January, lawyers for Florida murderer Clarence Hill won a stay for their client on the day he faced execution. He was condemned to die for the 1982 slaying of police officer.

His appeal cited new medical studies that suggested one of the drugs used in executions might mask the inmate’s pain by paralyzing his muscles.

Justice Ruth Bader Ginsburg asked a Florida lawyer what a judge should do if the evidence showed the drugs would cause the inmate “excruciating pain.”

Florida state lawyer Carolyn Snurkowski said nothing should be done because the inmate did not suggest a better alternative.

That answer did not sit well with several of the justices. That “strikes me as a little odd,” said Justice Stephen G. Breyer. And Justice Anthony M. Kennedy asked, “Why should the inmate, not the state, be responsible for finding a humane method of execution?”

Justice John Paul Stevens, a part-time resident of Florida, said the state had adopted new regulations to ensure that dogs and cats were put to death without pain. He also said that a group of veterinarians had filed a brief in Hill’s case saying the drugs used in Florida’s execution chamber would be problematic if applied to dogs and cats.

If Kennedy were to join with the court’s liberal bloc in the Florida case, the high court could rule that federal judges should consider claims that a state’s lethal injection was cruel and unusual punishment.

Such a ruling would not have much effect on a similar case pending in California. There, U.S. District Judge Jeremy Fogel already halted the pending execution of Michael A. Morales and agreed to take up next week a challenge to the state’s use of lethal injections.