Supreme Court Seems Split Over Lethal Injection The Supreme Court heard arguments in a case testing whether lethal injection is constitutional. Opponents say the three drugs used, and the way they are administered, create the potential for a tortuous death that would amount to cruel and unusual punishment.
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Supreme Court Seems Split Over Lethal Injection

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Supreme Court Seems Split Over Lethal Injection

Law

Supreme Court Seems Split Over Lethal Injection

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STEVE INSKEEP, Host:

NPR's legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG: But the procedures used by the state were so complicated as to invite problems, and that a simple alternative was available. That didn't seem to impress conservative members of the court like Justice Antonin Scalia.

ANTONIN SCALIA: This is an execution, not surgery. The other side contends that to know whether the person is unconscious or not, all it takes is a slap in the face and shaking the person.

DONALD VERRILLI: Justice Breyer observed that death penalty supporters see this challenge as something of a ruse.

BREYER: What the other side says is well you are just trying to do this by the back door, insist upon a procedure that can't be used.

VERRILLI: Well, I think that one point of the one-drug protocol, of course, is to demonstrate that we're not doing that.

TOTENBERG: In short, said lawyer Verrilli, the challenges are offering a viable one-drug alternative. Chief Justice Roberts...

ROBERTS: Do we know whether there are risks of pain accompanying that method?

VERRILLI: I think you do, Mr. Chief Justice because by definition, barbiturates cannot inflict pain.

TOTENBERG: Justice Breyer said, however, that he remains unpersuaded by the studies he has seen about the relative merits of different methods to end a life by lethal injection.

BREYER: I'm left at sea. I understand your contention. You claim that this is somehow more painful than some other method. But which?

VERRILLI: Well...

BREYER: And what's the evidence for that? What do I read to find it?

VERRILLI: The thiopental is a barbiturate that by definition will inflict death painlessly.

TOTENBERG: Justice Stevens followed up...

STEVENS: What is the justification for the second drug?

ROY ENGLERT: It does bring about a more dignified death - dignified for the inmate, dignified for the witnesses.

STEVENS: So the dignity of the process outweighs the risk of excruciating pain.

ENGLERT: No, your honor. No. It takes a very long time to die with the one- drug protocol.

STEVENS: It's very long then - 10 minutes?

TOTENBERG: Here, for example, is Justice Souter...

SOUTER: What's disturbing Justice Breyer, what's disturbing me and others is, we want some kind of a definitive decision here. And it seems to me that the most expeditious way of getting it - if comparative analysis is appropriate - and I will be candid to say I think it is - is to send this case back and say, okay, do a comparative analysis. Make the findings.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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