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The U.S. Supreme Court heard arguments today in a case about the death penalty. It tests what, if any, last minute legal challenges may be brought by a condemned man against the method of execution to be used to kill him. The case involves a convicted cop killer named Clarence Hill, whose execution was stayed by the Supreme Court last January. That stay came as Hill lay strapped to the gurney in Florida's death chamber.
NPR's Nina Totenberg reports.
NINA TOTENBERG reporting:
Thirty years ago, death by lethal injection was conceived of as a more humane way to execute the condemned and 37 states now use that method. But the lethal cocktail that's administered has not changed and critics charge that unnecessary suffering is caused by the drug combination and the lack of training for those who administer it.
The problem is that the anesthesia administered first is short-term and, as death penalty lawyer Todd Doss put it on the steps of the Supreme Court today, the paralytic administered next prevents the condemned man from indicating if he's still conscious and feeling while the lethal drug is administered.
Mr. TODD DOSS (Death Penalty Lawyer): It's been described in the amicus briefs as just an excruciating, burning sensation, that scours the nerve endings as it proceeds through the body.
TOTENBERG: Inside the court, Doss told the justices that his client is only challenging the method of execution used by the State of Florida, not the execution itself.
Justice Scalia, "By a means which you decline to specify, so that when the state picks another method, you could challenge that, too."
Answer, "There's never been a requirement that a constitutional alternative must be provided by the defendant. The alternative should be proposed by the state and the matter resolved by a trial judge."
Justice Ginsberg worried about endless litigation. "So, one case would take care of it? There wouldn't be a second episode?"
Answer, "The only reason for a second episode would be if the state proposed an unconstitutional method."
Chief Justice Roberts, caustically, "I'm willing to bet there would be a second challenge."
Justice Souter, "Would you agree that everything could be resolved in this one case?"
Justice Kennedy, "Do you have evidence that Florida can come up with an acceptable alternative?"
Answer, "Based on what we've seen around the country, yes."
Justice Alito, "Do you know of any method used anywhere in the country that's not a violation?"
Answer, "If the sedative works, the person is not in wanton and gratuitous pain."
Justice Scalia, "I could understand barring excruciating pain, but not any pain."
The justices then turned to the timing of Hill's challenge to the lethal injection method, with Justices Ginsberg, Scalia and Souter all asking why the lawyers waited until weeks before the scheduled execution to bring this challenge. Lawyer Doss said Florida has no published regulations on executions, that the Department of Corrections retains discretion to change the method at any time and that the state fought all attempts to find out what precise method would be used.
Florida Assistant Attorney General Carolyn Snurkowski told the justices that the state uses the same method that had been okayed six years ago by the state supreme court. But she conceded that the state has no statute or regulations on its books and retains discretion to change the method.
Justice Breyer, "His argument is that he delayed bringing this case because he wasn't sure what you would do." Breyer pointed to an article in the British medical journal The Lancet a year ago, in which researchers concluded that some people have remained conscious during the process and suffered great pain. Thus, suggested Breyer, Hill's lawyers might reasonably have expected the state to change the process to a more humane one.
Justice Ginsberg, "Is it all right for the state to expose someone to excruciating pain if no alternative is proposed by the defendant's lawyer?"
Lawyer Snurkowski dodged the question.
Justice Souter, "Why does he have the obligation to propose an alternative for the state? What's the principal of law?"
Again, the state's lawyer demurred.
Justice Kennedy, "You're not being very forthcoming with an answer."
Justice Stephens, "I note a brief filed by a group of veterinarians in Florida, saying that the state requires a more humane procedure for dogs and cats. Why isn't a similar procedure required for human beings?"
With Florida's lawyer on the ropes, Chief Justice Roberts came to the rescue. "I would have thought your answer is that if the defendant is unwilling to specify an alternative method, then this is really a challenge to the execution itself."
"After all," suggested Justice Scalia, "even the research that the defense would do would be to find a method that is absolutely unacceptable to the state."
Justice Breyer, "Like, old age?"
There was laughter in the courtroom until Justice Kennedy, red faced, interjected, "This is a death case, and not that amusing. Doesn't the state have a bare minimum obligation to come up with the most humane method of execution?"
Justice Souter, "We haven't heard one word about the state doing any investigating to come up with a method that does not involve gratuitous pain."
Justice Scalia, "We've never held that an execution has to be painless."
Chief Justice Roberts, "Presumably, there's some range between pain and cruel and unusual punishment."
Nina Totenberg, NPR News, Washington.
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