Justices uphold lethal method

Republican leaders urge O'Malley to act on Md. executions

April 17, 2008|By Jennifer McMenamin | Jennifer McMenamin,Sun reporter

In a decision expected to clear the way for states to resume executions by lethal injection, the Supreme Court upheld yesterday Kentucky's execution procedures, which are used by nearly every state with a death penalty law, including Maryland.

Executions across the country have been on hold since the high court agreed in September to hear the case of two Kentucky death row inmates who challenged the three-drug procedure, which is used to anesthetize, paralyze and stop the heart.

Within hours of yesterday's ruling, the governor of Virginia announced that he was lifting his state's moratorium on executions, while several prosecutors and governors around the country said they would seek execution dates as quickly as the courts can set them.

"We may see in some states a burst of executions," said Kent S. Scheidegger, legal director of the California-based Criminal Justice Legal Foundation, a nonprofit group that supports the death penalty. "Because there haven't been any executions since [the Supreme Court] took this case in the fall, a number of cases have reached the end of the normal appellate pipeline. So there's a buildup."

The court's 7-2 ruling has no direct impact on Maryland's de facto ban on executions, which was the result of a December 2006 ruling by the state Court of Appeals that the injection procedures were improperly developed without legislative oversight or public input.

Gov. Martin O'Malley has made no move to order new procedures, but after the high court decision, Republican leaders urged him to do so.

In a written statement released yesterday evening, O'Malley said he was reviewing the high court's 97-page decision. He noted the legislature's recent passage of a law establishing a commission to study the costs of Maryland's death penalty and its effectiveness as a deterrent to crime.

"We will follow the law in both cases," the governor said.

The Kentucky case, Baze v. Rees, virtually mirrors a federal lawsuit filed in Maryland by death row inmate Vernon L. Evans Jr. That case stalled when the state's highest court halted executions in ruling on an appeal that Evans filed in state court.

Like those involved with the Maryland federal case, lawyers for the Kentucky inmates challenged the procedure in which three drugs are used to put condemned prisoners to death - an anesthetic, a drug that paralyzes muscles, including the lungs and diaphragm, and a drug that stops the heart.

The prisoners' attorneys argued that the combination of drugs, if improperly administered, could cause inmates to suffer an excruciatingly painful death while masking their ability to signal suffering. They suggested executing condemned prisoners with only a fatal dose of anesthetic.

Kentucky countered that the constitutional ban against cruel and unusual punishment does not require executioners to eliminate any risk of suffering.

A majority of the justices sided with that argument.

"Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Constitution does not demand the avoidance of all risk of pain," wrote Chief Justice John G. Roberts Jr., in an opinion that garnered the support of Justices Anthony M. Kennedy and Samuel A. Alito Jr.

Four justices - John Paul Stevens, Antonin Scalia, Clarence Thomas and Stephen G. Breyer - agreed with the outcome while writing or signing on to concurring opinions.

Justice Ruth Bader Ginsburg wrote a dissenting opinion, which Justice David H. Souter joined.

Experts and advocates on both sides of the capital punishment debate agreed that the splintered ruling managed one important feat: It resolved the narrow legal issue of what standard lower courts should use to evaluate a state's execution protocols.

In the opinion written by Roberts, the three-justice plurality established that lethal injection procedures are unconstitutional if they present a "substantial risk of serious" pain to the condemned.

Their opinion left open the possibility that lethal injection procedures could be declared unconstitutional if a state refused to adopt a proposed alternative that was "feasible, readily implemented, and [would] in fact significantly reduce a substantial risk of severe pain."

Legal experts - and even the justices themselves in their opinions - offered drastically different predictions about the impact of the high court's new standard on litigation, which has tied up death penalty cases across the nation.

Scheidegger, of the Criminal Justice Legal Foundation, said the decision "comes pretty close to shutting down this chapter of the death penalty litigation."

"People will still make the challenges," he said, "but I think if the lower courts apply this decision properly, they should be dismissed pretty readily."

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