Justices seem unswayed by lethal injection foes

Times Staff Writer

Supreme Court justices reacted skeptically Monday to the claim that the lethal injections used to carry out executions in the United States were flawed in practice and amounted to cruel and unusual punishment.

Death penalty critics had hoped that the court would declare unconstitutional the use of a three-drug compound that has been the standard means of execution since the early 1980s. They say the use of a paralyzing drug could mask the fact that the condemned man may suffer searing pain when given a heart-stopping drug.

Such a ruling, if handed down by the high court, would not spell the end of capital punishment or bar the use of lethal injections. But, defense lawyers argued, switching to a single powerful barbiturate could result in painless deaths. Veterinarians put horses to death using just such a barbiturate, they said.


None of those arguments appeared to gain much traction during Monday’s argument in a closely watched Kentucky case. Instead, in their comments and questions, most of the justices said they were not convinced Kentucky’s method was flawed.

They also said they had seen no strong evidence that a single barbiturate would work better. Several of the conservative justices said they saw this attack on lethal injections as part of the long campaign to abolish capital punishment altogether.

“This is an execution, not surgery,” Justice Antonin Scalia told the attorney who was representing two Kentucky inmates who say the use of the three-drug compound poses “an unnecessary risk of pain” to the dying man.

“Where does that come from, that you must find the method of execution that causes the least pain?” Scalia continued. “We have approved electrocution. We have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here.”

Chief Justice John G. Roberts Jr. said he saw no problem as long as Kentucky followed its approved method. “If the two grams of sodium pentothal is properly administered [at the start] in virtually every case there would be a humane death,” he said.

But Donald B. Verrilli Jr., the Washington lawyer for the Kentucky inmates, said there was no guarantee it would be properly administered because prison officials did not have medical training. “When this goes wrong . . . the pain that is inflicted is tortuous, excruciating,” he said.


Justice Stephen G. Breyer, who might have been expected to side with the challengers, said he was not persuaded that the use of a single barbiturate would work better.

He pointed to a study of euthanasia in the Netherlands that concluded that a barbiturate does not always bring about death.

“So I’m left at sea,” Breyer said. “You claim this [currently used method] is somehow more painful than some other method. But which? And what’s the evidence for that?”

Verrilli replied that a large dose of a barbiturate would cause death, and it certainly would not cause pain.

“That method has never been tried, correct?” Roberts interjected.

“Well, it has never been tried on humans. That is correct,” Verrilli replied.

More than 30 years ago, states with the death penalty moved away from electrocutions or the gas chamber because of concerns about pain and suffering.

Lethal injections were seen as a humane alternative.

At that time, and with surprisingly little debate, they decided to use a three-drug concoction that had not been widely tested. It includes an anesthetic, a paralyzing agent and a heart-stopping drug.


In recent years, this formula has been cast into doubt. Some medical experts have warned that if poorly trained prison personnel fail to give a proper dose of the anesthetic, the condemned man may be conscious but paralyzed while the heart-stopping chemical flows through his veins.

But there is much dispute over whether this has happened ever, or often.

In California, U.S. District Judge Jeremy Fogel put executions on hold in 2006 after hearing medical testimony that suggested one or more inmates may have suffered excruciating pain as they died.

Last fall, after the Supreme Court agreed to hear the Kentucky case, other pending executions nationwide were put on hold.

If the Supreme Court upholds Kentucky’s use of lethal injections, that would likely end the legal challenges across the nation and lift the moratorium on executions. However, some states could move forward on their own to change how they carry out executions.

During Monday’s argument, lawyers noted that several states, including California, were studying alternatives to the three-drug compound.

On Monday, it did not appear that the challengers would prevail in the end. With the argument going badly, Justice David H. Souter suggested the case should be sent back to Kentucky for further hearings to consider, for example, whether a single barbiturate would work better.


But that option drew few takers. “We think this court should decide the issue,” and in favor of Kentucky, said Deputy Solicitor Gen. Gregory Garre.

Otherwise, “this never ends,” Scalia said. “There will always be some claim that there is some new method of execution devised and once again executions are stayed throughout the country.”

“We agree with that,” Garre said. “Endless litigation” will follow if Kentucky’s system is declared unconstitutional, he said.

Roy Englert Jr., a Washington lawyer defending Kentucky, assured the justices that the warden’s staff handled executions in a professional way.

“Contrary to what Mr. Verrilli has suggested, Kentucky has excellent safeguards in place,” he said. For example, he said, the woman who puts the needle in a condemned man’s arm does such work daily in the prison system. She “is probably literally the best qualified human being in the Commonwealth of Kentucky to place the IV line,” he said.

Moreover, the warden’s team practices constantly, he said, even though the state has not carried out an execution since 1998.


The only hopeful sign for the challengers was that Justice Anthony M. Kennedy said little during the arguments. In close cases, he can tip the majority to the liberal side.

Ralph Baze, the inmate leading the challenge, was sentenced to death for having shot and killed two deputies who came to arrest him in 1992 on a felony warrant from Ohio.

The court will probably hand down a ruling in Baze vs. Rees in several months.