A national drive to halt the death penalty met defeat at the Supreme Court on Wednesday when the justices ruled that lethal injections, if properly administered, were a humane means of executing a condemned prisoner.
By a surprisingly large 7-2 margin, the court rejected a constitutional attack on the main method of carrying out the death penalty across America. Its ruling cleared the way for executions to resume in several states after a seven-month delay.
Since October, officials and judges in those states -- including California -- have put executions on hold while awaiting the outcome of the Kentucky case decided Wednesday. Gov. Arnold Schwarzenegger said the ruling “supports California’s lethal-injection protocol” and should allow executions in the state to resume.
The court’s opinion, by Chief Justice John G. Roberts Jr., confirmed that there was strong support for the death penalty among the justices, and an unwillingness to tolerate endless delays.
“We begin with the principle . . . that capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out,” Roberts wrote.
“Some risk of pain is inherent in any method of execution -- no matter how humane -- if only from the prospect of error in following the required procedure.”
Roberts said the court would not allow a theoretical risk that a future execution could be botched to stand in the way of carrying out the death penalty.
He also set a high bar for future challenges to carrying out the death penalty. To halt an execution, defense lawyers must show that there is a “substantial risk” that the condemned prisoner will suffer “severe pain,” the chief justice said. And they have yet to provide such evidence, he added.
“A state with a lethal-injection protocol substantially similar to the protocol we upheld today would not create a risk that meets this standard,” he said.
Agreeing with Roberts, Justice Samuel A. Alito Jr. added a note to say that the court should not allow “litigation gridlock” to “produce a de facto ban on capital punishment.” Justice Anthony M. Kennedy also agreed with Roberts.
Justices Clarence Thomas and Antonin Scalia said they would go further and reject all challenges to an execution method unless it was “deliberately designed to inflict pain.”
Despite the lopsided outcome of this case, the Supreme Court remains deeply split on capital punishment. Death penalty cases that come before the high court often are decided by a 5-4 vote.
Justice John Paul Stevens, who will be 88 on Sunday, said his three decades on the court had convinced him that the death penalty should be ended.
He said he agreed with the late Justice Byron White, who once described capital punishment as “the pointless and needless extinction of life with only marginal contributions” to society.
Nonetheless, Stevens voted with Roberts to reject the challenge to lethal injections, since there was no evidence that Kentucky’s approach was badly flawed. Justice Stephen G. Breyer agreed for much the same reason.
Justices Ruth Bader Ginsburg and David H. Souter stood alone in dissent. They said they would maintain the hold on executions because Kentucky “lacks the basic safeguards” to ensure that an inmate dies a painless death.
“I would not dispose of this case so swiftly, given the character of the risk,” Ginsburg said.
Since the 1970s, most of the 36 states that carry out the death penalty have abandoned electrocutions or the gas chamber and switched to lethal chemicals. Most rely on a three-chemical mix that includes an anesthetic, a paralyzing drug and a heart-stopping agent.
In 2005, a British medical journal, the Lancet, raised an alarming prospect. It said dying inmates may experience searing pain from the heart-stopping chemical while lying paralyzed on the gurney if prison officials fail to give the proper dose of sodium thiopental, the anesthetic, better known as sodium pentothal.
Defense lawyers and death penalty opponents seized on this study and cited it as a reason to stop executions throughout the U.S. Their lawsuits revealed that state officials, instead of studying the effectiveness of the three-chemical combination, had relied on the fact that other states had adopted this approach.
They also showed that doctors and others with medical training were not on duty during executions to make sure the drugs were injected properly. Because of ethical concerns, most physicians will not participate in an execution.
In addition, the drugs themselves were suspect. At least 23 states, including Kentucky, have prohibited veterinarians from using the paralytic drug pancuronium bromide to put horses and other animals to death.
“It is unseemly -- to say the least -- that Kentucky may well kill [its condemned prisoners] using a drug that it would not permit to be used on their pets,” Stevens said.
Last year, defense lawyers appealed to the Supreme Court on behalf of two Kentucky inmates, arguing that the court should deem it unconstitutional “cruel and unusual punishment” to subject prisoners to an “unnecessary risk” of pain. Death penalty foes were cheered last fall when the court agreed to hear this challenge.
Had the high court agreed with the challengers, its ruling could have stopped executions indefinitely. Prison officials would have been hard-pressed to prove that a dying person would not experience some pain.
But in January, the challenge appeared to fizzle when the case of Baze vs. Rees was argued.
First, Kentucky had not carried out an execution in a decade, so there was little firsthand evidence of problems. Second, Roberts and the other justices pointed out, the Kentucky warden had adopted careful procedures to make sure a proper dose of drugs was administered.
The warden’s team had regular practice sessions, the state’s lawyer said. If done properly, Kentucky’s protocol “will result in a painless death,” Roberts concluded.
In her dissent, Ginsburg cited California’s proposed procedures as an improvement over Kentucky’s. A member of the execution team at San Quentin will check on the inmate to make sure he or she is unconscious before the heart-stopping drug is administered, she said, urging Kentucky to adopt this safeguard.
Taking a longer view, Roberts noted that the Supreme Court had never struck down an execution method as unconstitutional. Nonetheless, states have made steady progress in finding better ways to carry out the death penalty, he said.
“The firing squad, hanging, the electric chair and the gas chamber have each, in turn, given way to more humane methods, culminating in today’s consensus on lethal injections,” Roberts said.
He added that “our approval of a particular method” does not preclude “legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment.”
Death penalty critics insisted that Wednesday’s ruling did not foreclose challenges in states other than Kentucky.
“No one should be subjected to an inhumane, torturous death when it can be avoided,” said Elisabeth Semel, director of the Death Penalty Clinic at UC Berkeley. She said wardens should be pressed to adopt the safeguards discussed by the high court.
Supporters of the death penalty praised the ruling. It “should put an end to the de facto moratorium on the death penalty caused by legal challenges to this method of execution,” said Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento.