High Court Upholds Kentucky's Execution Injections

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The Supreme Court has upheld Kentucky's method of execution by lethal injection. The justices said the state's use of a three-drug combination does not violate the Constitution's prohibition of cruel and unusual punishment. NPR's Ari Shapiro reviews the high court's opinions with Steve Inskeep.


The Supreme Court has upheld Kentucky's method of execution by lethal injection. The justices say the state's use of a three-drug combination does not violate the Constitution's prohibition against cruel and unusual punishment. It is Constitutional in Kentucky. NPR's Ari Shapiro has been reviewing the high court's opinions, and joins us now to discuss them. Good morning, Ari.

ARI SHAPIRO: Morning, Steve.

INSKEEP: Does this affect a lot more than Kentucky - other states that have lethal injection, too?

SHAPIRO: Yeah. This three-drug protocol was in use in more than 30 states and the federal government. And so, executions had been on hold since September, when the court decided to take this case. The case involved some prisoners on death row in Kentucky, and they essentially said that if wrongly administered, this three-drug cocktail has the potential to cause enormous pain and suffering. The drugs induce unconsciousness and paralysis and then cardiac arrest. And they said if you don't administer enough of the unconsciousness drug, then the paralysis drug can prevent you from displaying the signs of the immense pain and suffering that you may experience…

INSKEEP: So even if you show no signs of it, you could be in terrible pain.

SHAPIRO: Right. Exactly.

INSKEEP: That was the argument, anyway.

SHAPIRO: Yeah. And as I mentioned, Kentucky's system is widely used, and so this had major ramifications across the country.

INSKEEP: And so, what did the judges have to say, then?

SHAPIRO: Well, they said that it's okay. And they were a very divided court. We had seven opinions this morning from the nine justices. And the governing opinion came from Chief Justice John Roberts. He said the risks of giving someone the wrong dosage are not so substantial or imminent as to amount to a Eighth Amendment violation. The Eighth Amendment, of course, prohibits cruel and unusual punishment. And he noted that the Supreme Court has never ruled that a particular execution technique is cruel and unusual punishment. But even so, the techniques of execution have become progressively more humane as lawmakers have acted. So we go from firing squad, to hanging, to electric chair, gas chamber, to today's lethal injection. And he essentially suggested, you know, if lawmakers think lethal injection is cruel and unusual, they can take action.

INSKEEP: If I can understand this, are they saying that no one is denying that if this three-drug protocol or cocktail is administered in the wrong way, that it could be painful? No one denies that, that…

SHAPIRO: That's right. The question is how substantial is the likelihood that it will be administered in the wrong way?

INSKEEP: And the high court says not such a big risk.

SHAPIRO: Well, at least in Kentucky it's not. Roberts noted that in Kentucky, there are safeguards in place to make sure this doesn't go awry. It's possible that in other states with lesser safeguards, there could be another challenge. But at least the three-drug protocol on its own is okay, according to the Supreme Court this morning.

INSKEEP: Is it significant you've got nine justices, seven different opinions here?

SHAPIRO: Yeah. There was a really explicit argument here among the opinions. And the argument focused less on the three-drug cocktail and more on the death penalty itself. So, for example, you had Justice John Paul Stevens, who joined in the conclusion about Kentucky, but he essentially argued it's time for the death penalty to go. He said current decisions to retain the death penalty as a part our law are the product of habit and inattention rather than an acceptable, deliberative process. I then you've got Justice Antonin Scalia coming back and saying that's flat out wrong. This is endorsed in the Constitution. Execution is mentioned in our founding documents. And so there's all of this back and forth between the justices. At the end, only two justices, Ginsberg and Souter, would have reached a fundamentally different conclusion. They said they would have made sure that Kentucky puts more safeguards in place to guarantee that the prisoner has had enough of the first drug before the second and third drugs take effect.

INSKEEP: There's a bottom line here, I suppose, for some prisoners in Kentucky. Does this mean that Kentucky can go ahead and execute the people who filed this lawsuit?

SHAPIRO: Kentucky, and many other states. We are already getting preliminary reports this morning. For example, in Florida, the State Attorney General Bill McCollum just said that an execution in Florida can now go forward. And, you know, this opinion literally came out just an hour ago, but I imagine that over the course of the day, we'll hear similar statements from other states that have executions pending.

INSKEEP: All right, thanks very much.

SHAPIRO: You're welcome.

INSKEEP: That's NPR's Ari Shapiro, giving us the latest on a Supreme Court decision upholding a method of execution involving lethal injection in Kentucky. You're listening to MORNING EDITION from NPR News.

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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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