A fragmented United States Supreme Court ruled 7-2 Wednesday that a three-drug protocol most commonly used for lethal injections does not violate the Constitution’s ban on cruel and unusual punishment.
Just two justices–Anthony Kennedy and Samuel Alito–joined Chief Justice John Roberts in an opinion upholding Kentucky’s method of using three drugs to sedate, paralyze and kill inmates.
Rejecting an appeal by two death-row inmates that the existing lethal injection protocol violates the Eighth Amendment because if not properly administered it is likely to cause substantial pain and suffering, Roberts ruled that simply because an execution method may result in pain does not automatically qualify it as cruel and unusual.
Allowing a condemned prisoner to challenge a state’s method of execution merely by showing a safer alternative, Roberts said, “would threaten to transform courts into boards of inquiry charged with determining ‘best practices’ for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology.”
Such an approach, Roberts said, “would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures–a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death.”
Only two justices–Ruth Bader Ginsburg and David Souter–dissented from the ruling, but four justices concurring with the judgment filed separate opinions quibbling over details. In addition Justice Alito, who joined Roberts and Kennedy in the plurality opinion, also wrote separately to explain his view of how the ruling should be implemented.
Justice John Paul Stevens agreed with the outcome, but described concern with use of the paralytic agent pancuronium bromide. Several states ban its use for euthanizing animals, because it masks outward signs of distress, meaning there is no way of knowing whether the subject is undergoing excruciating pain.
Justice Antonin Scalia wrote a concurring opinion that took exception to some of Stevens’ arguments against the death penalty, joined by Justice Clarence Thomas. Scalia in turn joined an opinion written by Thomas disagreeing with the governing standard behind the plurality opinion.
Justice Stephen Breyer concurred with the judgment but also agreed with part of Ginsburg’s dissent that the relevant question should be whether the method creates an unnecessary and avoidable risk of suffering.
The ruling allows states to lift moratoriums on executions that have been on hold for nearly seven months. Of 36 states that allow capital punishment, at least 30 use the same three-drug combination as Kentucky in their executions.
The case, Baze v. Rees, is the first time in more than a century for the Supreme Court to consider whether a specific execution method violates the Eighth Amendment. The last was in 1879, when the court ruled that firing squads do not constitute cruel and unusual punishment.
The decision is not expected to end the debate about lethal injection, however. As Justice Stevens noted in his opinion: “Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.”
Some religious groups, like the National Council of Churches and American Baptist Churches in the U.S.A., support abolition of the death penalty. The Southern Baptist Convention, on the other hand, supports “fair and equitable use” of capital punishment for murder and treasonous acts that result in death.
Bob Allen is managing editor of EthicsDaily.com.
Managing editor at EthicsDaily.com from 2003-2009, Allen wrote more than 1,500 news stories during his tenure.