MELISSA BLOCK, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
The Supreme Court decided last night to halt the execution of a convicted killer in Mississippi. Two justices, Alito and Scalia, would have allowed it to go ahead. But the majority's vote to stop the execution is a strong indication that the high court is imposing what amounts to a brief moratorium on the death penalty.
NPR legal affairs correspondent Nina Totenberg joins us now. Nina, why now?
NINA TOTENBERG: Well, because 37 of the 38 states that have the death penalty carry out executions by lethal injection, and the court has agreed to hear a case in January, testing whether lethal injections, as currently administered, are unconstitutionally cruel and unusual punishment.
The lower courts have reached different decisions on this, and so the court is poised to resolve the issue. And apparently, it doesn't want to authorize executions by a method that the justices just might find to be unconstitutional in a matter of months.
SIEGEL: But the question, I gather, isn't whether lethal injection per se is unconstitutional.
TOTENBERG: That's right. The question is whether lethal injection, as currently administered, is unnecessarily cruel, whether some alternative would pose less risk of pain and suffering.
SIEGEL: But lethal injection, unlike other methods of execution that preceded it was conceived of as a more humane way to carry out the death penalty than what we're doing before.
TOTENBERG: That's true, but times and science change. And death penalty opponents claim that lethal injection's three-drug cocktail is outdated and actually can impose severe pain.
They note that the American Veterinary Association, long ago, abandoned this method of euthanizing animals because the cocktail was considered unnecessarily cruel.
SIEGEL: Well, walk us through an execution by lethal injection.
TOTENBERG: Well, the first drug is sodium penthatal. You and I think of it as truth serum, but it's a short-term barbiturate. The second is pancuronium bromide, which paralyzes the person. And the third is potassium chloride, which imposes cardiac arrest.
Now, here is the argument against these drugs - that the second drug makes the individual look like he's peaceful. But that can be misleading because it's a paralytic, and so the person can't indicate any distress. The third drug, potassium chloride, can be extremely painful, critics say. When it's administered in smaller doses for medicinal reasons and too much is given, patients scream out in pain.
SIEGEL: Well, what would be the alternative then?
TOTENBERG: What veterinarians use is a long term barbiturate. It's like a massive overdose of a sleeping medicine.
SIEGEL: Well, Nina, let's go back to what the Supreme Court did last night. They had decided to stay the execution in Mississippi just minutes before it was to take place. Why do people think these amounts to a de facto moratorium on all executions involved in lethal injection?
TOTENBERG: This is the third time in a month that the court has stayed an execution. In fact, only one has gone forward, and that one was in Texas. On the very day that the court granted the lethal injection question for review, hours later on that day, lawyers scrambling to file an appeal were essentially locked out of the Texas Court of Criminal Appeals. They say they had a computer crash and begged the presiding judge to keep courthouse door open so that they could hand-deliver their appeal. But the judge refused. And when a state court says an appeal is filed to late, the Supreme Court's rule is part of the intervention.
SIEGEL: Now, last night, Supreme Court order had no accompanying statement from majority, explaining why they did this, but there were statements in dissent?
TOTENBERG: The Justices Antonin Scalia and Samuel Alito defend it, as you've said. Justice Alito, of course, is the court's newest member, and this gives you a pretty good reading of where he is on death penalty questions. As for Justice Scalia, the last time a case involving lethal injection was argued in front of the court, he said, and here I'm quoting: "We've never held that an execution has to be painless."
That, however, did not appear to be the view of Justice Anthony Kennedy, whose vote could be pivotal in this case. And back then, he asked this question: doesn't the state have a bare minimum obligation to come up with the most humane method of execution, and that really is the question in this case. So technically, what the justices are being asked to do is come up with a standard for evaluating methods of execution, as to whether they're unconstitutionally cruel and unusual punishment.
SIEGEL: But has the court ever actually ruled on a method of execution?
TOTENBERG: Yes. The last time though is more than a century ago. In 1879, the court ruled that execution by firing squad was not cruel and unusual punishment.
SIEGEL: Thank you, Nina.
TOTENBERG: Thank you, Robert.
SIEGEL: It's NPR legal affairs correspondent Nina Totenberg.
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