High Court Hears Lethal-Injection Case

The Supreme Court hears arguments in a case about challenges to the use of lethal injection. It could give inmates new authority to challenge the execution method.

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RENEE MONTAGNE, host:

And I'm Renee Montagne.

Today, the U.S. Supreme Court hears arguments in a case testing what last minute legal procedures can be used by death row inmates trying to challenge their method of execution.

NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

Earlier this year, Clarence Hill's luck looked like it had finally run out. Convicted in 1983 of killing a police officer, his death sentence had been twice reversed and twice re-imposed. On January 24th, he was strapped to the gurney in Florida's death chamber when word came that the Supreme Court had ordered a stay of execution to review his challenge to the method of execution: lethal injection, the method used in 37 states.

Thirty years ago, Okalahoma was the first state to require a lethal chemical cocktail to execute the condemned. It was the idea of a state legislator who consulted the state medical examiner, Jay Chapman.

Dr. JAY CHAPMAN (Oklahoma State Medical Examiner): I told him initially that I was an expert in examination of dead bodies, but I was no expert in getting them that way. But ultimately, we discussed the matter, and, at the end, I sort of just dictated to him the wording that actually became law.

TOTENBERG: The cocktail Chapman came up with quickly became the model for other states. A dose of anesthesia called sodium thiopental, followed by a drug to paralyze the inmate, followed by potassium chloride to cause death.

But the science of execution has not advanced over the decades. There have been cases of inmates convulsing before a death, and the cocktail used in the 1970s is considered so potentially painful that the American Veterinary Association bars its use to kill animals, as do 19 states.

It may seem odd to worry about the suffering of convicted killers. The Supreme Court, however, has ruled that the Eighth Amendment bar to cruel and unusual punishment means just that. Fordham law professor Deborah Denno is an expert on lethal injections.

Professor DEBORAH DENNO (Law, Fordham University School of Law): When you look at the Eighth Amendment standard, it talks about unnecessary pain or suffering. And this pain and suffering is unnecessary. There are better procedures available, and these chemicals should never have been used as long as they have been, and to the degree they have been by people who are so ill trained.

TOTENBERG: Dr. Chapman, who came up with the formula originally, agrees.

Dr. CHAPMAN: They may not be complete idiots, but apparently, from the things that have been said about the matter of how the drugs have been administered, they have not been trained people, or it has not been carried out in the way in which we envisioned it.

TOTENBERG: Complicating matters is the fact that the American Medical Association and the American Nurses Association are on record against their members participating in executions.

Today's Supreme Court argument will not focus on lethal injections themselves, but on the legal procedures the condemned can use to challenge them in court. Even if Hill wins, the case will go back to the lower courts for hearings on whether the injections as currently administered really are unnecessarily cruel.

And with Justice Samuel Alito having replaced Justice Sandra Day O'Connor, the court's calculus on the death penalty may well have changed.

Nina Totenberg, NPR News, Washington.

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