The U.S. Supreme Court on Monday heard arguments on whether the method of execution used in most states violates the Constitution's ban on cruel and unusual punishment. This was not a challenge to the death penalty itself, but to the way lethal injections are administered in 36 out of 37 states that have death penalty laws. At issue is the protocol in Kentucky.
Thirty years ago, death by lethal injection was conceived of as a more humane way to execute the condemned. But the three-drug protocol has not changed since then, and critics charge that it poses an unnecessary risk of pain and suffering that can be easily avoided.
Indeed, death penalty opponents note that the protocol used for executions today was long ago abandoned by the American Veterinary Association for use in killing animals because it was deemed unnecessarily cruel. In Kentucky, the three-drug cocktail is outlawed for animals.
The protocol used by Kentucky, and basically the same as what's used in 35 other states and by the federal government, has three steps.
Three-Drug Vs. One-Drug Protocol
First, sodium thiopental is administered to put the condemned prisoner to sleep deeply enough that he or she feels nothing. The second drug is pancuronium bromide, a paralytic that prevents the prisoner from twitching and having muscle spasms. But anesthesiologists and end-of-life doctors contend that if a person is not properly anesthetized, the paralytic will prevent him or her from indicating distress, and the third drug, potassium chloride, used to stop the heart, would make the condemned person feel as though the veins were on fire.
At the Supreme Court Monday, lawyer Donald Verrilli told the justices that a one-drug protocol, with an overdose of a barbiturate, would kill a condemned prisoner without the risk of pain and suffering.
Justice Stephen Breyer said the studies he's read are inconclusive: "I'm left at sea. I understand your contention. You claim that this is somehow more painful than some other method. But which? And what's the evidence for that?"
"Well, the thiopental is a barbiturate that by definition will inflict death painlessly," Verrilli replied.
Breyer noted that death penalty supporters contend that this challenge is just a back-door way to attack capital punishment.
Chief Justice Roberts added: "If you prevail here, and the next case is brought by someone subject to the single-drug protocol, and their claim is 'Look, this has never been tried, we do know that there's a chance that it would cause muscle contractions that would make my death undignified, it will certainly extend how long it takes to die.' "
The argument then turned to the challenger's assertion that the state of Kentucky does not adequately monitor the condemned man's depth of unconsciousness. That's because after the IV lines are inserted in the condemned prisoner, the execution team departs the death chamber and observes from another room, leaving only the warden and deputy warden inside the death chamber to monitor the prisoner at close hand.
Verrilli argued that the warden and his deputy are not trained to and cannot possibly monitor the depth of unconsciousness.
"Mr. Verrilli," Justice Antonin Scalia replied, "this is an execution, not surgery. The other side contends that to know whether the person is unconscious or not, all it takes is a slap in the face and shaking the person."
"There is no slap in the face; there is no shaking the person," Verrilli said. "All there is is visual observation by an untrained warden and an untrained deputy warden who testified in this case that they don't know what to look for to determine whether somebody is conscious or unconscious."
'Unnecessary and Wanton Pain'
Scalia asked where the challengers got the idea that the Constitution requires the least painful execution method.
"Where does that come from — that you must find the method of execution that causes the least pain? We have approved electrocution; we have approved death by firing squad."
Verrilli replied, "This court's cases have said that the standard is whether the means of execution inflicts unnecessary pain."
"Unnecessary and wanton," Scalia added.
Verrilli said the test they are advocating is whether there is a risk of tortuous pain and a readily available alternative.
Following Verrilli to the lectern was lawyer Roy Englert, representing the state of Kentucky.
They agree, he said, that if the first drug, sodium thiopental, is properly administered, there will be a painless death.
"But do you also agree with the counter proposition that if it is not properly administered, there is some risk of excruciating pain?" Stevens asked.
"Yes," Englert replied.
But Englert pointed to steps Kentucky has taken to ensure that doesn't happen, including 100 practice sessions for the execution team.
Justice Ruth Bader Ginsburg then asked about the fact that only the warden and his deputy are actually in the death chamber while the drugs are being administered: "What seems puzzling to me is that the state has made an effort to make sure that the people on the team that inserts the IV, that those are well-trained professional people. But then, apparently, they leave the room so that once the IV is inserted, there is no professional person that has any further part."
She asked the question three times before finally getting an answer: After the IVs are inserted, the team leaves the room and operates from a separate room with a one-way mirror so that when the curtains are opened in the death chamber, the team members' identities remain unknown to the witnesses and members of the media who are watching.
Stevens focused on the drugs administered after the barbiturate: "What is the justification for the second drug, when ... that is the drug that creates the risk of excruciating pain?"
Englert: "It does bring about a more dignified death — dignified for the inmate, dignified for the witnesses."
Stevens: "The dignity of the process outweighs the risk of excruciating pain?"
Englert: "No, your honor. No. It takes a very long time to die with the one-drug protocol."
Stevens: "What's a very long time? Ten minutes?"
Englert quoted the state's expert as saying it could take as long as 30 minutes.
Stevens conceded that the state seems to be doing a reasonable job of carrying out its three-drug protocol, but, he added, "I am terribly troubled by the fact that this second drug is what seems to cause all the risk of excruciating pain and seems to be almost totally unnecessary."
Back to the Lower Courts?
By the end of Monday's argument, it was unclear where the court is heading.
Three justices wondered aloud whether the record in the Kentucky case was simply inadequate. The lower courts did not make any finding as to whether a one-drug protocol would pose a lesser risk of pain and suffering.
And Breyer and Justice David Souter asked whether the court should send the case back to the lower courts to hear evidence on that question and make a finding.
"What's disturbing Justice Breyer, what's disturbing me and others," Souter said, "is we want some kind of a definitive decision here, and it seems to me that 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 the comparative analysis; make the finding.'"
But others, including Scalia, disagreed: "I'm 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, and then it goes to another appeal, to the state Supreme Court, and ultimately we're looking at years."
A decision in the case is expected by summer.