Another Death Penalty Issue Divides Supreme Court

The Supreme Court's latest clash over the death penalty focuses on whether the lethal chemical cocktail used by many states is an unnecessarily cruel way to die. Wednesday's 5-4 vote, which put a temporary stop to a Missouri execution, was illustrative of the Court's sharp division on the death penalty. Earlier this year, by the same vote, the justices issued a landmark ruling barring juvenile killers' executions on the grounds that they were cruel and unusual punishment.

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The Supreme Court’s latest clash over the death penalty involves the lethal chemical cocktail used by many states and whether it is an unnecessarily cruel way to die. The high court temporarily stopped a Missouri execution early Wednesday so justices could consider a last-minute appeal. A few hours later, Vernon Brown was put to death, after justices lifted the stay. The 5-4 vote was illustrative of the Court’s sharp division on the death penalty. Earlier this year, by the same vote, the justices issued a landmark ruling barring executions of juvenile killers on grounds they were cruel and unusual punishment. Justice Anthony Kennedy wrote the majority opinion on that case; in the Brown case, he voted to allow the execution. Brown was convicted of strangling a 9-year-old girl with a rope after luring her into his home as she walked home from school in 1986. His lawyers contended his execution would be cruel because the drug combination of sodium pentathal, pancuronium bromide and potassium chloride can paralyze inmates before subjecting them to suffocation, a burning sensation and a heart attack. “People are raising this issue across the country. It needs to be addressed,” said Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center. Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said state leaders could head off a Supreme Court showdown by reviewing their methods of performing executions. “It doesn’t cost much to do it and it’s cheaper than to litigate,” he said. The Supreme Court has never found a specific form of execution to be unconstitutional. A 1999 case challenging Florida’s electric chair, known as “Old Sparky,” was dropped at the high court after Florida added lethal injection as an option. Lethal injection is used in 37 states because it is considered more humane than options like the gas chamber and hanging. Chemical solutions vary some by state. Other issues related to lethal injection have reached the Court. Last year, justices looked at the case of an Alabama death row inmate who claimed his damaged veins made it impossible to insert an intravenous line without cutting deep into flesh and muscle. At the time, several members of the Court pressed for assurances that Alabama prison staff would consider the best medical procedures for the inmate. In a unanimous ruling, David Larry Nelson won the right to pursue an appeal. Although Nelson’s case did not involve a direct challenge to lethal injection, it prompted lawsuits over the types of drug cocktails used in other states and justices divided on 5-4 votes in a string of emergency appeals from inmates seeking temporary reprieves. Wednesday’s case involved the same 5-4 lineup. Three liberal justices who opposed the execution — Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer — seemed disturbed by Missouri’s failure to respond to the claim that the execution would be painful. “The state has not disputed the merits of (Brown’s) challenge to the chemical protocol used by Missouri to carry out lethal injections,” they wrote. Justice David H. Souter sided with them but did not sign on to their dissent. The three justices also cited an opinion by Judge Kermit Bye on the 8th U.S. Circuit Court of Appeals in St. Louis. Bye, who supported delaying Brown’s execution, relied on an article last month in The Lancet medical journal that questions the pain caused by the chemical combination generally used in lethal injections. The study involved 49 executions in Arizona, Georgia, North Carolina and South Carolina. In 21 of the deaths, the study found, inmates were likely conscious when they received the final drug that causes heart attacks. “No one will be able to tell whether Brown is conscious and therefore experiencing gratuitous pain because his entire body will be paralyzed so that he cannot express himself in any way,” Bye said. Justice Clarence Thomas, who handles appeals from Missouri, briefly stopped Brown’s execution, apparently to give his colleagues time to handle the multiple rounds of appeals in the case. Brown’s lawyers submitted hundreds of pages of documents to the Court. Missouri lawyers argued that courts were right to allow the execution although the subject “may be a topic for additional scientific research.” Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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