Supreme Court Upholds Lethal Injection Justices upheld Kentucky's use of execution by lethal injection Tuesday. They also heard arguments about use of the death penalty for child rapists in Louisiana. What does this mean for inmates sitting on death row?

Supreme Court Upholds Lethal Injection

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ALEX CHADWICK, host:

And we're going to go to Mexico City in a moment for a very interesting cultural story there. First though, to the Supreme Court in Washington - a very busy day for the death penalty. There was a long awaited decision on Kentucky's use of lethal injections and then justices heard arguments about whether a child rapist can be sentenced to death. We're joined by Slate.com's legal analyst, Day to Day regular contributor Dahlia Lithwick. Dahlia, hello. This Kentucky case, remind us about it and what the justices decided about lethal injection, lethal injection in Kentucky. This has been a very important case.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate.com): Yes, that's right Alex, this is one of the most watched cases of the term. The Court was looking at the lethal injection system used in Kentucky and all but one of the other 36 states that allow capital punishment.

The court was specifically looking to see if the three-drug protocol that was being used was likely to cause pain and suffering, so much so that the full method of lethal injection violated the Eighth Amendment ban on cruel and unusual punishment. And as you know, this triggered a whole de facto moratorium. The death penalty has all but come to a halt since the Supreme Court agreed to hear this case in September. But today, by a vote of seven to two, the Supreme Court upheld the lethal injection system. Presumably the same one in Kentucky would be upheld anywhere else in the country. The Court said it did not create a substantial or intolerable risk of suffering such that violated the Eight Amendment. Justices Ruth Bader Ginsburg and David Souter dissented.

CHADWICK: This has got to be a significant blow I would think to death penalty opponents. I mean, this is not even a close decision and as you say, a whole spade of executions has been held up on account of waiting for this ruling.

Ms. LITHWICK: That's right and even though I think this was sort of a Trojan horse, a way to try to get rid of the death penalty altogether under the guise of sort of getting rid of lethal injection, it sort of backfired. I think it's fair to say that death penalty opponents really had hoped that this was going to further erode the strength of capital punishment in this country. And the Court really all but said go back to it, because we just don't have enough of a problem with this means of execution. If you have a problem with capital punishment, and even some of the justices who voted with the majority in this case have a huge problem with capital punishment, but they said this is not the way to go about calling the whole system into question.

CHADWICK: After this announcement, the justices went on to hear arguments in this case about a convicted child rapist in Louisiana, sentenced to death. This is a case that you previewed for us yesterday. And the question is can a state sentence someone to death for a non-homicidal crime? So what were the arguments?

Ms. LITHWICK: Well, the lawyers for Patrick Kennedy who was sentenced under Louisiana law for the child rape of his eight-year-old stepdaughter. Lawyers for him said look there are only five states that even make child rape a capital crime and only one of those five states, Louisiana, does it for folks who aren't recidivist. So this is not in any way a consensus or growing trend, this is a small blip on the radar and that in fact we're in the same place in this country that we were in 1977, when the Supreme Court said the death penalty was simply not constitutionally permissible for adult rape cases.

So what his lawyers were saying in effect was nothing has changed, there's no burgeoning consensus that we're horrified by child rape, in fact nothing has changed at all so we need to do away with it. No one in this country has been executed for a rape since 1964.

On the other side, lawyers for Louisiana and the state of Texas who filed an amicus brief in this case said absolutely untrue, the '77 case was about adult rape not the rape of a child. It's a different thing, and they further went on to say look we have a new awareness, a growing sense using Megan's Laws and Jessica's Laws, the child rape is horrifying and something needs to be done. And Louisiana and Texas are really just laboratories experimenting with being more harsh against child rape, and that's appropriate.

CHADWICK: Dahlia Lithwick of Slate.com, and she's a legal analyst there and for Day to Day, covering the Supreme Court today. Dahlia, thank you so much.

Ms. LITHWICK: My pleasure Alex.

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