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In 2004 and 2006, the U.S. Supreme Court opened doors to civil rights challenges to execution by lethal injection. Will it close those doors in the new year? The Supreme Court has never held that a method of execution, such as electrocution or firing squad, violates the Eighth Amendment ban against cruel and unusual punishment. It is not being asked to hold that lethal injection is an unconstitutional method in Baze v. Rees, which will be argued on Jan. 7. But perhaps just as critical in a world where rules and tests may affect the ultimate viability of a challenged practice, the justices are being asked to give judges a standard for evaluating challenges to lethal injection protocols under the Eighth Amendment. The need for one standard is obvious from the flow of litigation throughout the country that followed the high court’s 2004 and 2006 rulings in Nelson v. Campbelland Hill v. McDonough, respectively. Lower courts have used a variety of standards � “substantial risk of wanton and unnecessary pain,” “wanton infliction of pain,” “significant and unnecessary risk” of inflicting severe pain” � to decide whether the challenged protocols are “cruel and unusual.” Not surprisingly, then, the results in this crucial matter of death procedures have been inconsistent and frustrating to judges, death row litigators and the state defendants. In the high court, death row litigators and the states bring their special concerns to the justices’ attention not only through the main briefs, but through a small set of well-targeted amicus briefs. Throughout the death penalty’s history, the nation has abandoned various execution methods as lawsuits, science and society’s evolving standards of decency exposed their shortcomings or more humane alternatives. Although lethal injection was first developed in 1977, problems in its administration have been revealed primarily through the civil rights lawsuits filed since 2004. Death penalty litigators and scholars say they have had to fight vigorously to get information from the states about how lethal injection is administered. In some court cases, that information remains under seal. They worry that the high court will not have the full picture of what happens in lethal injection executions. The justices, they say with additional trepidation, also did not pick the “best” case in terms of a record showing the problems that surround the use of lethal injection even though better cases were before them. “The Supreme Court is only going to be seeing a scintilla of what lethal injection is really about,” said death penalty scholar Deborah Denno of Fordham University School of Law, primarily because of states’ secrecy about their procedures. Denno conducted state surveys of lethal injection procedures in 2001 and 2005. The states, protective of that information in 2001, she said, became increasingly so by 2005 as questions and problems surfaced. To this day, she said, five states refuse even to reveal what drugs are in their lethal injection protocol. “It troubles me that the court is not seeing anything near the full record on these cases,” said Denno. She said she hopes the justices will look closely at an amicus brief filed by unusual bedfellows � the American Civil Liberties Union and the Rutherford Institute � about state secrecy in these cases as well as one focusing on the history of lethal injection in this country. The states, for their part, voice frustration that the movement toward the most humane method of execution is once again under attack in the courts. They and the Bush administration warn of endless and unnecessary litigation if the justices adopt the standard advocated by the death row inmates and their supporters in this case. “This is a setting in which states progressively moved through history to more and more humane execution methods,” said sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law. “This one seemed ‘more perfect,’ but now they’re being told, ‘Hey, we’re worried you’re not as perfect as you could be.’ There is a genuine concern that demanding a heightened perfection is tantamount to bringing the system down all together.” LIFTING THE VEIL The Bazecase stems from murders in Kentucky dating to 1990. In that year, Thomas Bowling shot and killed Eddie and Tina Earley and wounded their 2-year-old son after Bowling’s car crashed into the Earleys’ automobile in the parking lot of a dry cleaning business in Lexington. In 1992, Ralph Baze ambushed and murdered the Powell County sheriff and deputy sheriff when they tried to serve several Ohio felony warrants on Baze. Both men were convicted and sentenced to death for the killings. Kentucky adopted lethal injection as an execution method in 1998. Today, every state with capital punishment, except one, uses lethal injection. Kentucky has used the method only once � in 1999. Nearly all of the states use the same three-drug protocol developed in 1977: sodium thiopental (an anesthetic that causes unconsciousness), pancuronium bromide (a neuromuscular paralyzing agent) and potassium chloride (causing cardiac arrest and death). Baze and Bowling challenged the chemicals and procedures used by Kentucky in 2004. They charged there were problems with drug preparation and administration. The use of the three-drug formula puts the inmate at risk of experiencing paralysis, suffocation and excruciating pain if he is not adequately anesthetized by the first drug. In Kentucky, they said, there were inadequate facilities to witness what was happening during the procedure, no monitoring to ensure the inmate was unconscious and no special execution training for those administering lethal injection, among other problems. They also presented less dangerous alternatives, particularly in the drug protocol, that can complete a lethal injection. The trial court said that the Eighth Amendment required them to show a “substantial risk of wanton and unnecessary infliction of pain.” It held, and the Kentucky Supreme Court affirmed, that the inmates failed to meet that standard. In the high court, Baze and Bowling are represented by Kentucky Assistant Public Advocate David M. Barron as counsel of record. But Barron has turned over the job of oral arguments to veteran high court litigator Donald B. Verrilli Jr. of Jenner & Block’s Washington office, co-chairman of the Chicago firm’s appellate and Supreme Court practice. Barron and Verrilli argue that a state violates the Eighth Amendment when its execution procedures create a “significant and unnecessary risk of inflicting severe pain that could be prevented by the adoption of reasonable safeguards.” That standard, they contend, is a “straightforward and commonsensical” test derived from the high court’s landmark ruling reinstating the death penalty, Gregg v. Georgia. Their standard, explained Barron, does not require a state to eliminate every risk, no matter how small or unpredictable. For example, he said, a “latent” problem with Louisiana’s electrocution equipment, which was found only after the switch was flipped, was an unforeseeable accident that did not violate the Eighth Amendment. “This is not an abstract standard,” said Elisabeth Semel, director of the death penalty clinic at the University of California, Berkeley School of Law. “It puts a meaningful burden of proof on plaintiffs and makes sense in the way in which lethal injection has been developed and administered.” If pain is at the high end of the scale, as it is, and there is a strong case for available alternatives, she and others said, then inmates should not have to show a high or “substantial” level of risk. Kentucky, represented by Jeffrey T. Middendorf of the state’s Justice & Public Safety Cabinet, defends the “substantial risk” standard, claiming it too was derived from Gregg. The inmates’ proposed standard, argues Middendorf, negates Gregg’sprinciple that the courts “may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.” Under the inmates’ approach, he said, “Any method of lethal injection that does not minimize the risk of pain and suffering would apparently be deemed unconstitutional.” The Bush administration is advocating an even higher standard than Kentucky. The solicitor general argues that challengers must show a substantial risk that the challenged method would inflict a significantly greater degree of pain than a feasible alternative method and that in implementing the method of execution, “government officials are acting with deliberate indifference to a demonstrated risk posed by that method.” A group of states supporting Kentucky argues that the Kentucky Supreme Court reached the correct result but used the wrong standard to get there. They advocate a test that is the most deferential to the states in these cases. The states, led by Texas Solicitor General R. Ted Cruz, argue that only two questions should be asked: First, has a consensus of states developed for or against the challenged punishment? (They answer there is a consensus for lethal injection.) And second, giving substantial weight to that consensus, is the challenged method inherently cruel and unusual? (They argue the protocol is designed for a painless and dignified death.) The lethal injection case, say many scholars, presents difficult questions for the justices for a number of reasons: There is very little method-of-execution case law for them to examine, standards that do exist are vague and the issue involves not just law but medical expertise. There have been essentially three separate lines of analysis under the Eighth Amendment, they say. There is the principle in Greggand earlier cases that asks whether the punishment inflicts unnecessary and wanton pain. Second, there is the more modern formulation of “evolving standards of decency.” And finally, there is the “deliberate indifference” analysis applied only in cases challenging conditions of confinement. “I have a hard time believing either side has the standard the court will be attracted to,” said Ohio State’s Berman. “Both are vacuous in their own terms, and neither has grounding in Eighth Amendment jurisprudence.” Berman “leans toward” the deliberate-indifference analysis because “it deals with hard-core administration of imperfect systems.” Fordham’s Denno disagreed, noting that the Eighth Amendment was originally created to address execution methods. “This is the home for it,” she said, adding that even approaching the issue from an originalist perspective, “One could argue the unnecessary-risk standard fits quite comfortably there as well as with how punishments have followed evolving standards of decency.” But whatever the justices decide, lethal injection challenges are unlikely to end, said Berkeley’s Semel. “It all depends on how big a window the curt leaves open.” This article originally appeared in theNational Law Journal, a publication of ALM.

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