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The Supreme Court on Wednesday seemed reluctant to place too many procedural barriers in the path of death row inmates who want to make last-minute challenges to a state’s method of execution. Exploring for the first time the humaneness of lethal injections — the method of choice for almost all states that use the death penalty — the justices appeared reluctant to give states carte blanche to use any combination of death-dealing chemicals they choose. At one point in oral arguments in Hill v. McDonough, Justice Anthony Kennedy suggested that states have “some minimal obligation” to ensure that the chemicals used in legal executions employ the “most humane method” available. Justice John Paul Stevens, citing a brief filed in the case by three veterinarians, noted that the combination of drugs used by Florida would be prohibited for use in euthanizing dogs and cats. The case before the Court was brought by Clarence Hill, who was convicted in the 1982 murder of a Pensacola, Fla., police officer during a bank robbery. Decades of appeals were intermittently successful in reversing the sentence, but each time the sentence was restored. In 2000, Florida changed its method of execution from the electric chair to lethal injection. But Hill did not challenge the procedure until weeks before his scheduled execution date of Jan. 24, 2006. Florida courts denied the challenge, and four days before the execution date, Hill’s lawyers went to federal court, invoking 42 U.S.C. Section 1983 and claiming that lethal injection would violate their client’s civil rights. The U.S. Court of Appeals for the 11th Circuit treated his 1983 claim as the equivalent of a habeas corpus petition and denied it as an improper second or successive petition under the 1996 law that Congress passed limiting habeas. Hours before the scheduled execution, Justice Kennedy granted a stay to allow the appeal over whether and how Hill could challenge the method of execution. Hill’s lawyer D. Todd Doss of Lake City, Fla., argued that the challenge should be allowed because the execution method was new in the state and questions about its humaneness only recently emerged. He also said the state left him “in the dark” as to precisely what combination of drugs would be used in the execution. Several justices seemed worried that if an eleventh-hour Section 1983 suit is allowed, that device could be abused to delay executions every time the state adopts a new combination of chemicals. “I’d be willing to bet,” said Chief Justice John Roberts Jr., that successive civil rights claims would be brought. Doss said that would not be the case “if the sedative works” and the state’s new formula is constitutional. Doss and other death penalty opponents say the current sequence of drugs used in executions could result in severe pain for inmates. Florida Assistant Deputy Attorney General Carolyn Snurkowski ran into a buzz saw of harsh questioning when she argued that inmates who challenge a method of execution under Section 1983 should be required to suggest an alternative procedure. Justices Kennedy, David Souter, and Ruth Bader Ginsburg pressed her repeatedly on the legal source for her assertion. She apologized for seeming “disingenuous” but did not have an answer until Roberts bailed her out with a justification. If an inmate is not required to offer an alternative, Roberts said, the claim would amount to a habeas corpus challenge to the sentence itself. But several justices seemed to believe that it was not unreasonable for an inmate to invoke the civil rights laws to challenge an execution method, no matter when it occurs in the appeals process. First developed in Oklahoma in 1977, the three-drug injection method has been adopted in 37 of 38 death penalty states. Though it has been viewed as a more humane alternative to the electric chair and previous execution methods, Human Rights Watch last week issued a report asserting that in fact “there is mounting evidence that prisoners may have experienced excruciating pain during their executions.” A separate case directly testing the constitutionality of lethal injections is pending before the Court in Abdur’Rahman v. Bredesen. A death row inmate is appealing a decision last October by the Tennessee Supreme Court that upheld lethal injections as constitutional.
Tony Mauro can be contacted at [email protected].

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