WASHINGTON -- The Supreme Court said yesterday it would hear a new challenge to the way states carry out executions by lethal injection, possibly banning the use of outdated chemical concoctions that might cause dying inmates excruciating pain.
Such a ruling would not prohibit lethal injections, but it could force officials in most states to use new or different chemicals so inmates are not subjected to an "unnecessary risk of pain and suffering."
In December, U.S. District Judge Jeremy Fogel in San Jose blocked California from carrying out executions using the older chemical concoction on the grounds it would cause an unnecessary risk of a painful death. In Maryland, executions have been on hold since December because of a state Court of Appeals ruling.
In July, lawyers for two Kentucky death row inmates appealed to the Supreme Court and cited Fogel's ruling. They urged the justices to adopt the "unnecessary risk" rule as a constitutional standard for deciding what is "cruel and unusual punishment."
In a brief order yesterday, the justices said they had voted to hear this claim early next year. The court's intervention might halt pending executions until the question is resolved.
When capital punishment was upheld as constitutional more than 30 years ago, states relied on electrocution, the gas chamber or firing squad to put an inmate to death. Lethal injections were introduced as the new and supposedly painless method of execution in the 1980s. Today, 37 of the 38 states with the death penalty have adopted this method. Nebraska uses electrocution.
In recent years, medical evidence has suggested that the commonly used, three-chemical compound of sodium thiopental, pancuronium bromide and potassium chloride might be anything but painless. Some experts say that, while pancuronium bromide might paralyze the inmate, potassium chloride causes intense pain while stopping the heart. This evidence has been brought before judges across the country, prompting some to halt executions.
The Kentucky Supreme Court was unconvinced. Its judges said they did not see proof of a "substantial risk of wanton and unnecessary pain," and based on that legal standard, it upheld the continued use of the three-chemical concoction.
Kentucky has had only two executions in recent decades, although it has 41 inmates who are under a death sentence.
Nonetheless, David M. Barron, a public defender from Frankfort, Ky., wrote an appeal to the Supreme Court and recommended the justices set a national rule for deciding what constitutes "cruel and unusual punishment" in evaluating a method of execution.
The state's lawyers replied the two inmates were good candidates for the death penalty. In 1992, Ralph Baze shot and killed two county sheriffs who had come to arrest him on a felony warrant from Ohio. The other inmate, Thomas Bowling, shot and killed a mother and father in 1990 after his car had crashed into theirs.
"This is not a case for the U.S. Supreme Court to tell the states how to carry out an execution or what chemicals to use," Barron said yesterday. "Rather, it is for the justices to articulate the proper legal standard and whether what is being done complies with that." If it doesn't, how to fix it would be left to the states, he said.
Barron said there is ample evidence that other chemicals would be safer than the current trio.
University of Richmond law professor Carl Tobias said a key issue is looming well before the court hears the case: what will happen with executions scheduled before the court rules.
Tyler Alper, associate director of the death penalty clinic at the University of California, Berkeley's Boalt Hall School of Law, who maintains the Web site lethalinjection.org, said he expected the court's ruling to affect every pending lethal injection challenge but certainly would not lead to the abolition of lethal injection.
He emphasized that in recent years stays of execution stemming from lethal injection challenges had been granted in some cases and denied in others "with no meaningful difference between the substance of the cases."
David G. Savage and Henry Weinstein write for the Los Angeles Times.