Lethal injections: U.S. Supreme Court takes up death-penalty logjam

Ralph Baze is on Kentucky's death row because in January 1992 he used an SKS assault rifle to ambush a sheriff and his deputy when they arrived at his house to arrest him.

He shot the sheriff three times in the back. The deputy returned fire until he ran out of bullets. When the lawman tried to retreat, Mr. Baze shot the deputy twice in the back. As the deputy lay on the ground bleeding, Baze walked up to him and shot him in the back of the head.

The facts underlying Baze's conviction and death sentence are undisputed. No one claims he's innocent. What brings Baze and his lawyers to the US Supreme Court on Monday is their concern that the lethal injection protocol Kentucky plans to use to execute Baze might be too painful.

It is not a frivolous claim. The Eighth Amendment bars the government from inflicting cruel and unusual punishments.

A government-sanctioned execution must be tempered to avoid wanton and unnecessary infliction of pain and suffering. But the end of human life is frequently accompanied by pain and suffering, so how much pain is too much pain in a death row execution?

That is what the justices are being asked to decide in the potential landmark case, Baze v. Rees.

"Obviously the Supreme Court is not going to outlaw lethal injection executions," says David Elliot of the National Coalition to Abolish the Death Penalty. "But for the first time, someone might stand up and say, 'Hey, there have to be standards to do this.' "

Lawyers for the state of Kentucky say the Eighth Amendment prohibits any execution method that carries a "substantial risk" of the unnecessary and wanton infliction of pain.

Lawyers for Baze embrace a standard more protective of death row inmates. They say execution methods that involve "an unnecessary risk" of pain and suffering should be barred.

In effect, any risk of pain deemed unnecessary to the mechanics of the execution rises to the level of a constitutional violation, they say.

"The Eighth Amendment's prohibition on the gratuitous infliction of suffering requires states to avoid inflicting more pain than is necessary to cause death," says Baze's lawyer, David Barron of the Kentucky Department of Public Advocacy, in his brief to the court.

Lawyers for Kentucky disagree. "Petitioners urge this court to forge a new interpretation of the Eighth Amendment under which any risk of pain and suffering is prohibited, no matter how small or remote," writes Jeffrey Middendorf, a lawyer for the state of Kentucky, in the state's brief.

If the high court endorses Baze's 'unnecessary risk' standard, Mr. Middendorf writes, "any method of lethal injection that does not minimize the risk of pain and suffering would apparently be deemed unconstitutional."

Unlike most death penalty cases, the Supreme Court action won't determine whether a death sentence is warranted. Instead, the justices must decide which standards the Constitution requires when states elect to carry out an execution by means of lethal injection.

Thirty-six states and the federal government currently rely on lethal injection as the chosen method of execution. In anticipation of the Baze case, the Supreme Court has imposed a de facto moratorium on all lethal injection executions across the country pending the high court's decision in the Kentucky case.

The case is being closely watched by states seeking to avoid delays and further litigation over capital punishment. Twenty states and the federal government have filed friend of the court briefs urging the Supreme Court to uphold Kentucky's lethal injection program.

Death penalty proponents warn that if the high court embraces Baze's argument, it will create legal grounds for open-ended death penalty appeals by permitting constitutional challenges to any execution method whenever a less painful alternative is identified.

Death penalty opponents don't disagree. "These are tough issues that are going to have to be litigated," says Mr. Elliot of the Coalition to Abolish the Death Penalty. "Looking at the larger picture, it is going to give us an opportunity to examine whether, at the end of the day, the death penalty is worth all the trouble."

Opponents also say the lethal injection protocol used in Kentucky and most states involves a deeply flawed process that carries unacceptable risks that condemned inmates will suffer horrible deaths. They cite botched executions in several states. Some say the state's lethal injection protocol would not meet minimal standards used to euthanize dogs and cats.

At the heart of the Baze case is concern about what might happen to Baze if Kentucky botches his execution.

Under the three-drug protocol used in Kentucky, the first drug administered is sodium pentathol, a barbiturate intended to render the inmate unconscious. Next, the inmate receives a dose of pavulon, a drug that causes total paralysis. Finally, potassium chloride is injected to stop the heart.

The concern is that if the first drug fails to work properly the inmate will remain mentally aware as the other drugs are injected. Medical experts agree that a condemned inmate will endure unbearable pain and suffering from the injection of the potassium chloride. But because he has just been paralyzed by the pavulon, the inmate will be unable to show any sign of distress. To an observer, the inmate may appear to have gone peacefully to sleep. But some experts say the inmate may, in fact, be fully conscious and in agony during his final moments of life.

At least two states, Missouri and Florida, have taken steps to prevent this scenario by requiring verification that the inmate is, in fact, unconscious prior to the administration of the other two drugs. Critics say properly trained medical professionals are needed to monitor anesthetic depth to ensure the procedure is as pain-free as possible.