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Justice Antonin Scalia said yesterday that he would not be surprised if the Supreme Court strikes down the death penalty. The comment from the conservative justice comes as death penalty states struggle to follow through on executions. NPR's Martin Kaste reports on where the legal and political struggle over capital punishment stands.
MARTIN KASTE, BYLINE: Justice Scalia was asked about the death penalty during an appearance at the University of Minnesota Law School yesterday. Professor Richard Frase was in the audience, and he says Scalia seemed to be lamenting the growing skepticism about the death penalty among other members of the court.
RICHARD FRASE: I did come away thinking that he saw it as pretty likely that there would be five votes to strike down the death penalty across the board at some point while he's still in court.
KASTE: Scalia has said similar things before, so there's no reason to think that the Supreme Court is about to move on the death penalty. But his remarks are timely, especially when he talked about how it's become, quote, "practically impossible for states to impose the death penalty."
In recent days, Arkansas, Oklahoma and Ohio have all had to delay executions for legal reasons or, in the case of Ohio, because they just can't get the drugs that they need for the lethal injections. Pharmaceutical companies are under big pressure not to supply those drugs. It's a long-standing problem, but Robert Dunham of the Death Penalty Information Center says things seem to be reaching a critical point.
ROBERT DUNHAM: I think what's happened is that there was a period of time in which it didn't matter to states whether they had the drugs or not because most states aren't executing people anyway. As they began to have cases move through the system, it began to attract more attention.
KASTE: And when state's try to adapt to the drug shortage by trying different combinations of drugs, they're often challenged in court. The fight over the death penalty has settled into a kind of legal trench warfare over the method of execution. Dunham believes this state-by-state struggle could eventually convince the Supreme Court that there's a growing consensus in society against the death penalty.
DUNHAM: When a sufficient number of states have abolished it in practice by not carrying out executions, then we may have reached the point in which the Supreme Court says there's an evolved national consensus against it.
KASTE: Maybe, but Ohio state senator John Eklund does not think things are going in that direction.
JOHN EKLUND: I certainly see the heinous nature of some of the conduct that human beings inflict upon other human beings, and I think the state should reserve the right to impose the ultimate penalty for those types of behaviors.
KASTE: Eklund chairs the Senate's Criminal Justice Committee, and last year, he pushed through a law that shields the identities of the companies that supply death penalty drugs. It wasn't enough, though. Ohio now says the shortages mean no executions until 2017. Eklund says this is disappointing, but the state will not give up.
EKLUND: Part of what we're doing here in Ohio is, as a result, examining different alternatives that could be used for purposes of carrying out a sentence of death.
KASTE: In fact, other death penalty states have become so frustrated that they're now contemplating a return to old-school methods. Tennessee has approved the electric chair as a backup method. Utah says it may use firing squads, and Oklahoma has approved nitrogen gas. Martin Kaste, NPR News.
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