April 16, 2008 -- The Supreme Court has upheld the three-drug lethal injection method used by the state of Kentucky in a 7-2 decision, clearing the way for an unofficial moratorium on executions to be lifted.
"Some risk of pain is inherent in any method of execution no matter how humane -- if only from the prospect of error in following the required procedure," Chief Justice John Roberts wrote in the majority opinion. "It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions."
"Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual," his opinion continued.
Justices Ruth Bader Ginsburg and David Souter dissented.
The two convicted murderers at the center of the case, Ralph Baze and Thomas C. Bowling, had unwittingly caused an unofficial moratorium on executions across the country.
Since the court announced in September that it would hear the Kentucky case, states had postponed the execution of 25 death row inmates; some states had stopped scheduling them altogether while the justices mulled the case.
The last execution in the United States occurred the same day the court picked up the case, when Texas put Michael Richard to death on Sept. 25, 2007.
Baze and Bowling had argued that death by lethal injection constitutes cruel and unusual punishment, an argument the Court rejected. The drugs included in the protocol are sodium thiopental, which anesthetizes; pancuronium bromide, which paralyzes; and potassium chloride, which causes cardiac arrest.
Of the 36 states with a death penalty law on the books, all but one has designated lethal injection as the primary method of execution.
As for what's next, Richard Dieter, who runs the Death Penalty Information Center, a group opposed to the capital punishment, said he believes that "quite a few [execution] dates will be set -- testing whether their states meets the same standard that the court found acceptable in Kentucky."
Dieter said methods of capital punishment are not likely to go unchallenged in the future, despite the court's ruling in the Kentucky case.
"Lower courts could say that based on today's decision that the execution in certain states cannot go forward because they don't even meet the Kentucky procedures," Dieter continued. "This is not a blanket pass for all states to carry out lethal injections."
Associate Justice John Paul Stevens noted in his concurring opinion that the decision is not the final word on the lethal injection issue because other states have their own challenges.
Dieter noted that "Roberts indicated that they have never overturned a method of execution, and that's true, but I don't think this decision removes objections that will continue."
"The fact that there were only two justices in dissent, they may be thinking of the real problems of executions in Ohio and Florida etc.... This must be lingering in the thoughts of the dissenters," he added.
Lawyers for Baze and Bowling had argued that the drugs are administered by untrained officials who can botch the execution and cause extreme pain. They also argued that other drug combinations could be more effective in carrying out the death penalty.
Donald Verrilli, an attorney for the Kentucky inmates, has said, "It really is not about fine-tuning the system to create an incrementally less amount of pain. This is about avoiding torture."
But in court, the justices seemed skeptical of the argument. Conservative Justice Antonin Scalia said, "Where does this come from that you must find the method of execution that causes the least pain? We have approved electrocution. We have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here."
There have been instances across the country of fumbled executions.
In Florida, convicted murderer Angel Diaz was executed in 2006. But a medical examiner's postmortem examination revealed that due to the improper injection of the anesthetic in his case, he had chemical burns on both arms. Experts believe he would have felt extreme pain for 20 to 30 minutes.
In Ohio, Joseph Clark was sentenced to death for killing a gas station attendant. But his 2006 execution was botched. It took him 86 minutes to die while he screamed in pain.
Even his victim's brother, Michael Manning, watched in horror. "He started to shake his head from side to side," said Manning. It took a technician 19 tries to insert the deadly intravenous needle.
Manning said what he saw in that execution chamber should not have happened. "I believe in the death penalty, but I side on the constitutionality side of it. The Eighth Amendment says no cruel and unusual punishment, and that's what I think it was."
In Missouri, the doctor who devised and supervised that state's lethal injection procedure has admitted in court that he is dyslexic, "so it's not unusual for me to make mistakes."
An investigation by the St. Louis Post-Dispatch revealed that the doctor, Alan R. Doerhoff, had been sued for malpractice more than 20 times. The paper also reported that one nurse who worked on Missouri executions is himself a convicted stalker.
But victims' rights advocates, as well as victims' family members, often have little sympathy for the arguments of the death row inmates.
Dennis Briscoe was 14 years old when Baze opened fire with an assault weapon and murdered his father and uncle -- both Kentucky law enforcement officers.
"What they should really consider is the pain my father and uncle went through when that happened," he said. "We should all be so lucky as to just fall asleep when we die."