High Court Upholds Lethal Injection

In a ruling Wednesday, the U.S. Supreme Court rebuffed a challenge to the most common method of execution: lethal injection. The Court this week also heard arguments about whether the death penalty should be allowed for those convicted of raping children. Virginia Sloan, president of the Constitution Project, discusses the cases and their implications.

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MICHEL MARTIN, host:

I'm Michel Martin and this is Tell Me More from NPR News. Coming up, our international round up focuses on Africa. We get an update on the elections impasse in Zimbabwe and a report on the ongoing efforts to bring stability to the Democratic Republic of Congo five years after the end of its civil war. But first, we look at the death penalty in the U.S. The Supreme Court yesterday upheld lethal injection as an acceptable method of execution, permitting states to resume the procedure after a seven-month moratorium. And the court also heard arguments about whether execution should be permitted as a penalty for those who rape children. Here to help us understand both cases is Virginia Sloan. She is president of the Constitution Project. She's here in our studio. Welcome. Thanks for coming.

Ms. VIRGINIA SLOAN (President, Constitution Project): Thanks so much for having me.

MARTIN: If you could just briefly tell us, what is the Constitution Project?

Ms. SLOAN: Sure. The Constitution Project is an independent think tank based here in Washington and we put together bipartisan consensus on constitution safeguards on a variety of issues, including capital punishment.

MARTIN: And I understand it includes people who both support and oppose the death penalty?

Ms. SLOAN: That is right.

MARTIN: Let's talk about the court's decision on lethal injection. Two Kentucky inmates challenged the constitutionality, claiming that this three-drug cocktail that is typically used violates the constitution's ban on "cruel and unusual punishment." I'm curious about how this issue even arose. How did anybody even ask the question?

Ms. SLOAN: Well, it became increasingly apparent that lethal injections, as they were administered in a variety of states, were not going as expected and that there was a considerable amount of pain that was being inflicted on the people who were being executed, and that the way in which lethal injection was administered was, first of all, kept entirely secret from the public. And secondly, that the people who were administering the three-drug protocol were not necessarily, in any way, qualified to do that. Which would create this untenable and in some cases, absolutely horrible pain for the person who is being executed.

MARTIN: So what was the question? Whether the pain threshold exceeds a constitutionally accepted limit?

Ms. SLOAN: Well, the question was regarding the eighth amendment "cruel and unusual punishment" clause, and the question was, what was the standard that courts should use to determine whether there was an unacceptable level of pain? And that's what the court decided yesterday in a variety of opinions. A splintering of opinions that many people believe will lead to an increased litigation rather than to cut it off.

MARTIN: Well, tell me about that. The decision was seven-to-two in support of the existing protocol, but Chief Justice Roberts wrote the opinion - it was joined by only two other justices, Kennedy and Alito, and then four concurred with another opinion. So, what does that say?

Ms. SLOAN: It spells absolute mass confusion. Even one of the justices, Justice Alito, who joined in Chief Justice Roberts' opinion, wrote a separate opinion, and so everybody was writing opinions saying different things, and so it's going to be very hard to determine what the law is, what the standard that the courts should follow, and it's going to result in a lot of other lawsuits, and it's going to inevitably go back to the Supreme Court again.

MARTIN: What's the immediate practical effect of the court's decision - decisions?

Ms. SLOAN: Yes. Right. The immediate practical effect is that there were a number of stays that the Supreme Court had issued itself or that state courts had issued or governors had issued, pending this court's decision. Those stays are now being lifted and execution dates are already being set. There are at least 42 people on death row in Texas who are awaiting execution and there are probably a hundred throughout the country who will now proceed to have execution dates set.

MARTIN: Does your group take a position on this question?

Ms. SLOAN: No. We do not take a position on whether the death penalty should continue or whether it should be abolished. We talk about the safeguards that should be in place if this country is going to have the death penalty and about how those safeguards are, frankly, not in place in so many instances.

MARTIN: And is there a practical alternative to this three-drug cocktail that the inmates objected to in their case before the court? I mean, is there another alternative? Because you could see where one could argue that this is an argument to - as kind of a way to eliminate the death penalty, but you say there just isn't any not-cruel way to administer it?

Ms. SLOAN: Well, that was something that Chief Justice Roberts discussed in his opinion and also on the bench when he announced the decision. He said that so long as we have the death penalty, there has to be a way to implement it and this is what the country has decided on. But there is an alternative that has been suggested and that is being studied and may well solve some of these problems, and that is a one-drug protocol, which is something that veterinarians are using. The vast majority of states do not allow this three-drug protocol to be used to euthanize animals, yet it's being used for human beings.

So, yes, there are alternatives and one would hope now that the court has decided this case, that the states will now start looking at more humane and equally, sadly, effective alternatives.

MARTIN: If you're just joining us, you're listening to Tell Me More from NPR News and I'm speaking with Virginia Sloan, she's president of the Constitution Project, about two death penalties before the Supreme Court. Let's turn our attention now to a case that was argued before the court yesterday, and you were there for the argument.

Ms. SLOAN: I was.

MARTIN: What was the case?

Ms. SLOAN: The case is Kennedy versus Louisiana. It's a case involving an eight-year-old child who was raped, but there was no death connected with the crime. It was just a rape and there are only two...

MARTIN: And we would put "just" in quotes because part of the issue here is that this was a particularly vicious attack that caused...

Ms. SLOAN: Yes, indeed. Any rape - any rape is a horrible crime.

MARTIN: Profound. And the argument was particularly hard, given the age of the child.

Ms. SLOAN: Given the age of the child and given the injuries - the physical injuries, as well as the mental trauma.

MARTIN: But the specific issue is that it was not a homicide attached to the rape, if you will.

Ms. SLOAN: Yes. And for 43 years, there has not been an execution in connection with a crime in which there was no homicide, no death connected with it. That's why I say, "just rape," as opposed to rape plus homicide. And there is a case called Coker(ph) against Georgia in which the Supreme Court held that capital punishment for rape was unconstitutional. That case involved what the court described as an "adult woman." She was 16 but married, and they considered her, for whatever reason, an adult, and decided that in those circumstances it was unconstitutional.

The question is whether in these circumstances a Louisiana statute applies to children under the age of 13. Whether that is also unconstitutional. And that was the issue before the court yesterday.

MARTIN: Six states have enacted laws that allow capital punishment for the rape of the child, but there were only two men on death row, both in Louisiana, for this issue. I understand that race is an issue here. At least, race has been part of the conversation about this. Why is that?

Ms. SLOAN: Race is a part of the conversation about the criminal justice system, in general. It is a part of the conversation about capital punishment because it is clear that race infects every decision along the way when a case is prosecuted as a death penalty case. It infects the decision to try the case as a capital case, it infects jury selection, it infects the way decisions are made by the judge and the jury, and it infects sentencing. Race is an escapable problem when it comes to capital cases, and with regard to rape cases, especially, there's a long tradition in the South with black men being charged with rape of white women. And that's, sadly, a tradition that continues today. And that's why this kind of capital prosecution is even more troubling.

MARTIN: But I understand that many of the groups who actually - who are dedicated to supporting victims of sexual abuse, including those who are particularly concerned about child sexual abuse, oppose reimposing the death penalty in child rape cases. Why is that?

Ms. SLOAN: That is absolutely right. Even putting aside the constitutional issues, those groups, who are really experts in how to care for and treat children who've been abused in this way, oppose the death penalty. And there are two principle reasons. One is that so often, the perpetrators of these crimes are family members or close friends of the family. And this is already a vastly underreported crime, and they are concerned that it will become even less reported if the consequence of reporting it is that a family member or a friend is going to be put to death.

MARTIN: In other words, it will push the crime even further underground. You'll achieve less accountability. But on the other hand, the states who have reimposed this, who have passed these laws and which seek to reimpose it, say that there's new understanding of just how traumatic this is and that society needs to express its abhorrence. What's the legal issue at stake here in this case?

Ms. SLOAN: You're certainly right that there are some prosecutors who are pushing these laws. There are other prosecutors who understand that this is going to become more of an unreported crime. They are also concerned that there will be no reason for the perpetrator to not just go ahead and kill the victim to eliminate any witness. So it will actually make the situation even worse.

But the legal issue is whether it is constitutional to apply the death penalty in a case where there has been no death that has occurred. The death penalty is supposed to be applied only in the very narrowest of circumstances and only with very strict standards of eligibility, and it's supposed to be applied only for the worst of the worst.

And as Justice Breyer in the argument said yesterday, where do you draw that line? If you expand it to rape cases, where no death has occurred, how about torture where no death has occurred, or any number of absolutely horrible crimes? And suddenly, you end up with a huge expansion of capital punishment when we should be going in exactly the opposite direction and defining it so narrowly.

MARTIN: Virginia Sloan is the president of the Constitution Project, which works to provide constitutional safeguards to fairly apply the death penalty. She was kind enough to join us here in our studio in Washington. Virginia Sloan, thank you so much for stopping by.

Ms. SLOAN: Thank you so much for having me.

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