Between life and death
WASHINGTON — More than 30 years after the lethal injection method of executing prisoners was developed in Oklahoma, the U.S. Supreme Court is set to determine whether it is cruel and unusual punishment.
The court is scheduled to hear oral arguments Monday in a case from Kentucky in which two death row inmates claim the three-chemical method of execution poses a risk of an extremely painful death. Citing examples of problems delivering an anesthetic through an IV, the inmates say the "combination of the dangerous three-drug protocol with complex administration procedures and poorly trained personnel renders foreseeable errors and botched executions inevitable over time.”
The inmates, who contend there are less dangerous alternatives to the three-chemical formula, lost their case in Kentucky, but the Supreme Court agreed to take the appeal amid challenges in other states regarding lethal injections.
Since taking the case, the court has effectively imposed a moratorium on executions in the nation.
In October, Oklahoma Attorney General Drew Edmondson asked the Oklahoma Court of Criminal Appeals to delay executions until the case is decided. Edmondson's request came after the U.S. Supreme Court rejected the final appeal of Terry Lyn Short, who was sentenced to death for killing an Oklahoma City man in 1995.
In an interview, Edmondson said he hopes and expects the high court to use the Kentucky case to "enunciate a national standard” for an execution method that doesn't violate the Eighth Amendment's prohibition against cruel and unusual punishment.
The inmates are arguing that the Eighth Amendment prohibits a punishment that creates an "unnecessary risk of pain and suffering.”
That standard is much different than the one that states like Kentucky and Oklahoma use as their guide — that the Eighth Amendment prohibits a method that poses a "substantial risk” of wanton infliction of pain.
Edmondson joined in a brief filed by several states in the case arguing that the three-chemical method used in Kentucky is neither cruel nor unusual.
The 36 states that have the death penalty and use lethal injection follow the three-drug method devised in Oklahoma.
When a punishment "is not opposed by a consensus of states and also is not unusual and inherently cruel, the punishment at issue should be upheld as fully consistent with the Eighth Amendment,” the states argued to the court.
The U.S. Solicitor General, the administration's representative to the Supreme Court, also contends that the method should be upheld as constitutional.
The solicitor general told the court that the Constitution protects people against officials who are "deliberately indifferent” to a significant risk of pain but that the inmates haven't shown that Kentucky officials are "acting with anything close to deliberate indifference.”
"Indeed, the whole point of the lethal-injection procedure is to avoid the needless infliction of pain and to hasten death.”
Inventor sought painless method
The method was developed in part by a former Oklahoma legislator who was personally opposed to the death penalty.
Bill Wiseman, a Tulsa Republican, wrote the legislation in 1977 that made Oklahoma the first state in the nation to adopt lethal injection as the method of execution after the U.S. Supreme Court allowed states to reimpose the death penalty.
Wiseman, working with the state medical examiner and an anesthesiologist, wanted to make executions painless. He said in an interview in 1990 that, while working to pass the legislation, he showed his colleagues pictures of the corpses of inmates who had been killed in an electric chair.
"It looked like seared meat,” he said then.
Wiseman, who died in a plane crash last year, told The Oklahoman in 2006 that he still believed lethal injection was a painless way of administering death if done properly.
One of the questions raised in the Kentucky case is whether proper administration can be guaranteed.
The Oklahoma Corrections Department eventually chose the drugs: sodium thiopental, a barbiturate anesthetic to keep the inmate from feeling anything, like a person undergoing surgery; vecuronium bromide, which paralyzes movement and halts breathing; and potassium chloride to induce cardiac arrest.
The Kentucky inmates argue that the people who chose the drugs "did not consult any other physicians or veterinarians, conduct any medical or scientific research, or consider how, and by whom, the drugs would be administered in actual executions.”
According to them, the improper administration of the anesthetic could lead to excruciating pain from the potassium chloride.
Because the inmate had been injected with a drug that effectively paralyzed him, he wouldn't be able to signal that he was experiencing pain.
The inmates say that because each of the three drugs used in lethal injection are capable of causing death, the paralytic agent and the potassium chloride could be eliminated.
"The resulting protocol, using thiopental (or another barbiturate) as the sole lethal agent, would be far less sensitive to error, and would allow any injection errors to be detected and corrected without subjecting the inmate to extreme suffering,” the inmates argue.
End of the death penalty?
According to the Death Penalty Information Center, 929 inmates have been executed by lethal injection since 1982. There have been 86 Oklahoma inmates executed by lethal injection since 1990, when the method was first used in the state.
The Kentucky inmates argue that they shouldn't have to prove the three-drug protocol would cause extreme pain.
"The proper question is whether repeated executions using the three-drug formula and Kentucky's inadequate procedures would produce torturous deaths in at least some cases,” the inmates say. "The answer to that question is plainly yes.”
But the U.S. Solicitor General argued that the Supreme Court "has never held that a method of execution violates the Eighth Amendment.
"To the contrary, the court has rejected challenges to executions by firing squad and electrocution and, at the same time, made clear that jurisdictions are not required to use the ‘best' available method of execution: i.e., the method that is believed to cause the least amount of pain when compared to other methods.
"Such a standard would impose an impossible burden on the federal government and the states and would, at a minimum, be a recipe for judicial micromanagement of execution procedures, including the medical and scientific details of those procedures.”
Edmondson said the case "could be the vehicle for saying that there will be no more death penalty.”
But he said he didn't the think the court would rule that way.
And he said he didn't think the court would want to review the specific procedures used in every state with the death penalty. Instead, he said the court will likely rule on what broad standard under the Eighth Amendment should apply to executions.
"I hope that's why they accepted the case,” he said.
No comments:
Post a Comment