January 7, 2008 / 5:40 AM / 12 years ago

Supreme Court appears divided in death penalty case

WASHINGTON (Reuters) - Lethal injection procedures pose a danger of cruelly inhumane executions with excruciating pain, an attorney for two death row inmates told the U.S. Supreme Court on Monday in a capital punishment case that has drawn worldwide attention.

A pedestrian walks past the U.S. Supreme Court in Washington, January 31, 2006. REUTERS/Jason Reed

But attorneys for the state of Kentucky and the Bush administration defended the three-drug cocktail currently used in nearly all U.S. executions and said the drugs, if administered properly, would result in a painless death.

Opponents argue that inmates are often not rendered fully unconscious by the first drug in the cocktail as they are supposed to be before the second drug, a paralytic, is administered. They suffer when they are conscious while the paralytic and the third drug, which burns as it enters the system, are given.

The justices appeared closely divided between conservative and liberal factions during the arguments that represented the first time the high court has considered a specific means of execution since it upheld the use of firing squads in 1879.

While the session focused on the narrow issue of whether to uphold the three-drug mix or require some other alternative, the case has prompted a nationwide debate on capital punishment itself in one of the few democracies that still permit it.

Executions across the United States have come to a temporary halt since the court agreed in late September to decide the case and fell last year to a 13-year low of 42. Thirty-six states now have the death penalty.

Last month, New Jersey became the first state to abolish the death penalty since the Supreme Court reinstated capital punishment in 1976.

Of the four conservatives on the Supreme Court, Justice Antonin Scalia vigorously questioned Donald Verrilli, the lawyer representing the two death row inmates.

Scalia questioned Verrilli’s argument that the state must use the method of execution that causes the least amount of pain.


“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,” Scalia said.

The standard method of lethal injection involves administering sodium thiopental, which causes unconsciousness, pancuronium bromide, which results in paralysis, and potassium chloride, which stops the heart.

“I’m terribly troubled by the fact that the second drug is what seems to cause all risk of excruciating pain, and seems to be almost totally unnecessary,” Justice John Paul Stevens said.

Verrilli proposed as an alternative using just a single dose of the barbiturate sodium thiopental, along with adopting other safeguards, such as more effective monitoring of the inmate by trained personnel.

The alternative drug would eliminate the latter two drugs and the danger of conscious asphyxiation and excruciating pain.

Justice Ruth Bader Ginsburg asked Roy Englert, the lawyer for the state, about the qualifications of the execution team.

“The point that was highlighted was that the people who control the flow into the IV connection, that those people have no training — the ones that are called executioners,” she said.

Chief Justice John Roberts, who was appointed by President George W. Bush, seemed opposed to the one-drug alternative, saying it has never been used for an execution.

Justice David Souter urged a definitive resolution of the three-drug method, even if it means sending the case back to Kentucky for more study by lower courts.

But Scalia was against further review, saying opponents of capital punishment want to look at alterative methods as a way to temporarily halt executions.

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With the court evenly split between liberal and conservative factions, the case could turn on moderate justice Anthony Kennedy, who often casts the decisive vote on contentious issues like the death penalty.

Kennedy during the arguments gave no firm indication of how he might rule. A decision in the case is expected by the end of June.

(Editing by Cynthia Osterman)

Reporting by James Vicini, editing by David Alexander

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