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 CNS Story:

SCOTUS-LETHAL Jan-7-2008 (540 words) With photos. xxxn

Dispassionate court considers lethal injection as execution method

By Patricia Zapor
Catholic News Service

WASHINGTON (CNS) -- In the Supreme Court's first look in more than a century at the constitutionality of a method of execution, several justices Jan. 7 seemed inclined to pass on deciding whether lethal injection constitutes cruel and unusual punishment.

The oral arguments dealt dispassionately with the clinical details of how lethal injection works and how it can sometimes go wrong, rather than addressing the morality of capital punishment itself.

Even Justice John Paul Stevens, generally an opponent of capital punishment, said that if the main legal question the court faces is whether Kentucky properly follows protocols intended to avoid unnecessary pain and preserve dignity then the state would probably win the case.

But by not getting at the legal question of whether the procedure can cause excruciating pain, Stevens said, the case "leaves open a whole area of litigation."

Since the court agreed to take the case in September, there has been an effective nationwide moratorium on executions, as lower courts and state governments put executions on hold because they use the same three-drug combination for lethal injections as the method challenged in Kentucky. The federal government and all but one of the 36 states that have capital punishment use the combination as their primary method of execution.

Two other justices suggested sending the case, Baze v. Rees, back to the lower courts with an order to consider how the current method of lethal injection compares to other options.

"If we don't do something like that, this case will be back before us a year or 18 months from now," said Justice David Souter.

Justice Stephen Breyer also said Baze v. Rees doesn't provide the appropriate legal questions to get at the issue of whether the three-drug combination is likely to inflict excruciating pain and therefore violates the constitutional ban on cruel and unusual punishment.

A single dose of the final drug, potassium chloride, used in the combination is an effective method of execution, noted attorneys for both sides. The inmates are first given sodium thiopental to induce unconsciousness and pancuronium bromide to paralyze the muscles and avoid involuntary muscle reactions when the potassium chloride induces cardiac arrest.

Critics of the procedure say that sometimes the person being executed is not rendered unconscious but only immobilized by the first two drugs. The potassium chloride then causes excruciating pain and the prisoner is unable to cry out to let the executioners know what is being felt.

But Justice Antonin Scalia said it matters little whether a problem with the way the drugs are administered sometimes leads to excruciating pain for the condemned prisoner.

"Cruel and unusual is the standard, not painless," he said. "Where does the requirement come from that they must choose the least painful method?"

Some discussion among the justices and the attorneys noted that veterinarians nationwide and the Kentucky Legislature have banned a similar three-drug option for euthanizing animals because of the risk of inflicting pain.

The oral arguments also touched on the medical and technical training of those involved in administering the lethal drugs.

The court is expected to rule on the case before it adjourns for the term in July.


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