The Supreme Court on Monday appeared unconvinced that the lethal-injection procedure used for capital punishment nationwide poses enough risk of pain to inmates that it raises constitutional objections as "cruel and unusual" punishment.
The three-drug "cocktail" used to anesthetize, paralyze and then kill death row inmates is the focus in Baze v. Rees, a Kentucky appeal brought by Ralph Baze and Thomas Bowling, two inmates convicted of separate double murders in the early 1990s. Since the Court granted review in the case in September, a de facto moratorium on executions has taken hold across the country. All but one of the 37 states with capital punishment use lethal injections as a requirement or a choice. (Nebraska uses electrocution.)
Some justices expressed concern about whether enough safeguards are in place to monitor or prevent pain during executions. And Justices Stephen Breyer and David Souter suggested the case should be sent back to lower court for further fact-finding on whether a proposed single-drug alternative would be more efficient in bringing pain-free death.
"I'm left at sea," said Breyer at one point, complaining about the conflicting testimony put before the Court about different procedures.
But at almost every suggestion of delay or remand, Justice Antonin Scalia complained that such maneuvers would just prolong the informal moratorium on executions.
"I'm very reluctant to send it back to the trial court so we can have a nationwide cessation of all executions," said Scalia. "Ultimately, well, it could take years."
Scalia also criticized the entire inquiry into how much pain one or another execution method would cause.
"Where does that come from, that you must find the method of execution that causes the least pain?" asked Scalia. "Is that somewhere in our Constitution?"
Donald Verrilli of Jenner & Block, arguing on behalf of the Kentucky inmates, said the Court has long disapproved of executions that inflict "torturous pain." He did not argue that all lethal injections are unconstitutional, and he conceded that if a procedure could be guaranteed to be 100 percent painless, he would not be challenging it.
But in the case of lethal injections, Verrilli said that if the initial anesthetic, sodium thiopental, is improperly administered, the inmate could be awake while the second drug, pancuronium bromide, paralyzes and suffocates, and the final drug, potassium chloride, causes burning pain on its way to stopping the heart.
"The pain that is inflicted here when this goes wrong is torturous, excruciating pain under any condition," said Verrilli, who argues on behalf of capital defendants in addition to arguing business cases before the Court.
Roy Englert Jr., arguing for Kentucky, countered that the risk of pain is minimal because of the "excellent safeguards" his client has in place.
Englert, a veteran Supreme Court advocate at Washington, D.C.'s Robbins, Russell, Englert, Orseck, Untereiner & Sauber, also usually argues business cases. But his sure-footed presentation Monday appeared to win over most justices on the death case as well.
Under questioning from Justice John Paul Stevens, Englert readily made the potentially damaging concessions that the three-drug protocol could cause excruciating pain if improperly administered and that it would be unconstitutional if that risk was present in every execution.
But he insisted that "Kentucky has safeguards in place to make sure that the inmate is asleep" before the second and third drugs are administered. As a result, Englert said, the only risk of excruciating pain is "the absolute, bare-minimum likelihood that is inherent in any process that involves human beings."
Stevens acknowledged to Englert that "the record is very persuasive in your favor." Deputy Solicitor General Gregory Garre also argued on Kentucky's side of the case, asserting that "negligent, accidental, or inadvertent" infliction of pain is not unconstitutional.
Verrilli came back more assertively in rebuttal, arguing that by Kentucky law, the same drugs used for lethal injections are barred for euthanizing animals because of the risk of pain.
"The risk here is real," said Verrilli, adding that if Kentucky chooses to use the chemicals it bars for animals, "it ought to have the commensurate obligation to take the reasonable steps" to minimize that risk for humans.
