Supreme Court Upholds Lethal Injection Protocol

In Depth

How do lethal injections work? Why do opponents say they constitute "cruel and unusual punishment"? And how did the justices respond to that argument? Find out in our Q&A on lethal injections.

Since 1976, when the Supreme Court reinstated the death penalty, 38 states have adopted capital punishment. Thirty-seven states use lethal injections to execute inmates; Nebraska still uses the electric chair. hide caption

See a Full List of Executions in U.S. States since 1976
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The Supreme Court on Wednesday upheld Kentucky's use of lethal injections for executions, clearing the way for a number of states to proceed with scheduled executions.

In a 7-2 decision, the justices rejected a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates.

"We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment," Chief Justice John Roberts wrote.

Justices Ruth Bader Ginsburg and David Souter dissented.

Executions across the country have been on hold since September, when the court agreed to hear the Kentucky case. Texas, which leads the nation in executions, has also had an unofficial moratorium. It is not known when executions will resume.

The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would leave the prisoner unable to express his discomfort.

The case before the court came from Kentucky, where two death row inmates wanted the court to order a switch to a single drug, a barbiturate, that causes no pain and can be given in a large enough dose to cause death.

Kentucky executed its first and only prisoner by lethal injection in 1999. Recent executions in Florida and Ohio — which use the same three-drug protocol as Kentucky — have taken much longer than usual, with strong indications that the prisoners suffered severe pain in the process.

From NPR and wire reports

Q&A: The Lethal Injections Case

The Supreme Court on Wednesday upheld Kentucky's method of execution by lethal injection. In a 7-2 ruling, the justices said the state's use of a three-drug combination does not violate the Constitution's prohibition against cruel and unusual punishment.

Lethal injections are the most common method for carrying out the death penalty across the United States. The high court's decision clears the way for executions to resume across the country. Here, an overview of the case and its implications.

What was the case about?

At the heart of the case was the lethal three-drug protocol used in most states that carry out the death penalty. The case stemmed from Kentucky; lawyers for two defendants sentenced to death there argued that lethal injection violates the Eighth Amendment prohibition against "cruel and unusual punishment." They argued that animals are put to death by using a simple — and they claim, more humane — single drug. They also pointed to a botched execution in 2006 in Ohio, where it took an hour to dispatch an inmate. At one point, according to court records, the inmate cried out, "It don't work."

What did the high court say about the "cruel and unusual" argument?

In the governing opinion, Chief Justice John Roberts wrote that the risks of giving someone the wrong injection dosage "are not so substantial or imminent as to amount to an Eighth Amendment violation."

Was the question ever about abolishing the death penalty?

No. The case was about the method used to execute convicted criminals, not the larger issue of whether the United States should abolish the death penalty. But the court opinions addressed whether the death penalty should be used in the United States. In an opinion concurring with the majority, Justice John Paul Stevens wrote, "Current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process." Justice Antonin Scalia responded in another concurring opinion by asking how Stevens could "adopt the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution."

How exactly does lethal injection work?

The condemned inmate is strapped to a gurney and sedated with sodium thiopental, rendering the person unconscious. The inmate is then injected with a paralyzing agent, pancuronium bromide, which stops the breathing muscles, and finally a dose of potassium chloride, which stops the heart.

Why do opponents call this method of lethal injection inhumane?

Death penalty opponents argue that there is ample evidence that the current three-drug cocktail poses an unnecessary risk of pain and suffering. Anesthesiologists and end-of-life doctors contended in briefs filed with the court that if a person is not properly anesthetized, the paralyzing agent will prevent him from being able to indicate any distress, and that pancuronium bromide can make him feel as if he is suffocating. And medical experts say that if the person isn't properly anesthetized, then the third drug, which stops the heart, will be excruciatingly painful, making the prisoner feel as if his veins are on fire.

Why do most states use lethal injection to carry out the death penalty?

Because it was considered a more humane way of executing the condemned than other methods such as electrocution. The lethal injection method was developed in Oklahoma and first used in 1977.

How widespread is the use of lethal injection today?

Very. Of the 37 states that have the death penalty on their books, 36 use basically the same three-drug protocol as Kentucky for lethal injection. Nebraska uses the electric chair to execute people. (Four other states use the electric chair as an "optional" form of execution.)

Does this mean that lethal injections may now resume?

Yes — in Kentucky and nationally. After the court announced its decision, Florida became the first to announce that executions there will now go forward.

With reporting by Eric Weiner, Ari Shapiro and Nina Totenberg.

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