Washington - The US Supreme Court on Monday suggested it may
have to send a case over lethal injections used in applying the death
penalty back down to lower courts for further review, potentially
keeping state executions in the United States on ice for years.
Lawyers before the nine-member court debated whether the kind of
lethal injections used by states to execute condemned inmates are
legal under the US Constitution, which prohibits cruel and unusual
punishment. Attorneys for inmates argue there are pain-free
alternatives that states are refusing to use.
The Baze versus Rees case, brought against the state of Kentucky
by two inmates on death row, has led to a de facto moratorium
nationwide on state executions pending the outcome - something the
court's nine justices were clearly mindful of in their comments at
the more than one-hour hearing.
Justice David Souter suggested the case may be thrown back to
lower courts, because a 'comparative analysis' of the alternatives to
the three-drug concoction currently being used had not yet been
discussed properly.
'If we don't do something like that in this case, another case is
going to come along and we're going to be right back here,' Souter
said. 'We want some kind of a definitive decision here, and it seems
to me the most expeditious way of getting it - if comparative
analysis is appropriate and I will be candid to say I think it is -
is to send this case back and say, 'do a comparative analysis, make
the findings.''
But other justices were mindful of what death penalty advocates
have argued is a ploy by opponents to keep capital punishment on the
shelf through constant litigation.
'Those who oppose capital punishment entirely across the board are
quite willing to take a careful look at all the alternatives,' said
Justice Antonin Scalia. 'That's the problem, if we come up with a
decision that requires a careful look in every case whenever there's
a newly developed method of execution, the problem will always be
before us.'
Human rights groups deny that ending the death penalty is their
goal in this case, arguing that humane executions are an intermediate
goal until the practice can be stopped altogether. Jamie Fellner, an
attorney for Human Rights Watch vowed that 'advocates will continue
to fight the death penalty - (but) that doesn't mean that we should
permit a method that is known to be flawed.'
The case centres on how the current lethal injection method, used
by Kentucky and most other states, is administered. It involves three
chemicals given in order: sodium thiopental renders the condemned
unconscious, pancuronium bromide paralyses them and potassium
chloride stops the heart.
David Verrilli, attorney for the inmates, argued the three-drug
method is complicated and open to mistakes: if the initial chemical
is administered incorrectly, the victim could be conscious and would
experience tremendous pain when the last drug is injected. Instead,
they say the first drug is itself lethal and could be administered on
its own - a painless method even if mistakes are made.
But the state of Kentucky's attorney Roy Englert argued the one-
drug method was untested and would harm the 'dignity' of the
condemned. Their death could take as long as 40 minutes and cause
involuntary muscle contractions which, though not painful, would be
difficult for witnesses to watch. He also argued there was not a
'sufficient' or wanton risk of pain to prevent the current method
from being used.
Justices seemed frustrated with the idea that their decision
could potentially keep the death penalty on hold for the foreseeable
future - if it either kept a window open for new cases or sent the
matter back down for a new trial.
The court was 'very reluctant to send it back to the trial court
so we can have a nationwide cessation of all executions while the
trial court finishes its work,' Chief Justice John Roberts said.
'Ultimately we're looking at years. We wouldn't want that to happen.'
© 2008 dpa - Deutsche Presse-Agentur 
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