Analysis: Focus on the mechanics of execution
The Supreme Court on Monday showed an acute fascination with the detailed mechanics of executing criminals using lethal drugs, but also displayed considerable uncertainty about whether they have chosen a proper case in which to rule on that method’s constitutionality. In a rapid-fire question-and-answer with three lawyers in Baze v. Rees (07-5439), most of the Justices showed very little interest in what legal standard they might employ if they ultimately do answer the basic question of whether the Eighth Amendment bars the use of the three-drug protocol now commonly employed.
Justice John Paul Stevens, the Court’s most liberal member, suggested explicitly at one point that the state of Kentucky probably should win in this case, if the issue was solely how well it administers the present protocol in order to assure that death occurs without great pain and with dignity. But, he said, that would leave open the issue of whether the protocol itself — the combination of three drugs — could pass constitutional muster.
Two of his colleagues, who have expressed doubt about the validity of that protocol – Justices Stephen G. Breyer and David H. Souter, raised the prospect that the Court perhaps should send the case back to state courts for a full exploration of whether there are alternatives, and whether those would bring about execution without constitutional violations.
The alternative stressed by the two Kentucky death row inmates’ lawyer, Washington attorney Donald B. Verrilli, Jr. , would be to switch to a single drug — a barbiturate — that not only would anesthetize the condemned prisoner, but, in a sufficient dose, would actually cause death. Justice Samuel A. Alito, Jr., who is the newest member of the Court with no significant record on death penalty issues, did not discuss the possibility of returning the case to lower courts for further study, but did express concern that there were no findings in the trial court on the alternative of a single-drug protocol. Without any findings on alternatives, Alito said, how could the Court hold that the existing three-drug protocol was unconstitutional?
Breyer also seemed troubled by what he considered the limited available evidence on alternatives, including the single-drug barbiturate suggestion. He tried to press Verrilli on the evidence for his contention that that would be a more acceptable alternative. “What’s the evidence for that?” Breyer asked. “What do I read to find it?”
Justice Antonin Scalia, among the Court’s most conservative Justices, spoke out strenuously against any move to return the case for more evidence-gathering, suggesting that would only mean a continuing nationwide moratorium on executions with a resolution of the validity of the three-drug protocol put off; Scalia said “it could take years.” Scalia also was the one Justice who focused on a constitutional standard to apply to execution methods, saying that it is not a constitutional requirement that a state use “the method of execution that causes the least pain.” Those who wrote the Eighth Amendment, he said, were only concerned with punishment that amounted to actual torture, “the intentional infliction of pain….There is no painless requirement in there.”
Chief Justice John G. Roberts, Jr., voiced concern about the potential that the Court might be drawn back into the constitutional dispute with new cases. If the inmates’ challenge to the three-drug protocol were to be upheld and the Court spoke favorably of a single-drug protocol, Roberts suggested, the next case would simply challenge that alternative as insufficient.
The impression emerged that the outcome may well depend upon the way Justice Anthony M. Kennedy approaches it. He was among the Justices most intently focusing on how the three-drug protocol works in practice, and what kinds of professionals with what kind of methodology might have to be employed in the execution process to assure that it would be constitutional — questions that also interested Justice Ruth Bader Ginsburg. Kennedy wondered if there would be any constitutional argument if it could be shown that, in 100 percent of the cases where the existing protocol were used, it had been properly administered.
The state of Kentucky’s advocate, Washington attorney Roy T. Englert, Jr., went into a lengthy and strong defense of every aspect of the current protocol as Kentucky administers it, indicating that all of the complaints the inmates’ case had made were not well founded in fact. His most rigorous challenge came from Justice Stevens.
Stevens began by asking Englert whether the constitutionality of the three-drug protocol itself it at issue in this case “or merely the question whether Kentucky has done an adequate job of using that protocol?” Only the latter, the lawyer replied. On that point, Stevens then said, “the record is very persuasive in your favor.” But then Stevens moved to what he was most concerned about: the use of the second drug in the protocol, the paralyzing drug pancuronium. “Do we have to wait for another case to decide that rule?” he asked. “I am terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary in terms of any rational basis for requirement.”
Englert defended the use of that drug as “permissible,” but that did not satisfy Stevens. And Justice Ginsburg soon picked up on the expressed concern about the pancuronium and the reason for it being in the protocol sequence.
The attorney for Kentucky also had to confront pressing questions about why the protocol involves the use of drugs that Kentucky’s own legislature has forbidden for use in euthanizing animals.
Deputy U.S. Solicitor General Gregory G. Garre, joining in defending the three-judge protocol because the federal government, too, uses it for executions, sought to bring the Court’s attention back to the issue of standard for judging the constitutionality of any lethal injection protocol. It should be a standard of “substantial risk” of pain, he argued. He made what seemed like a concession when he told Justice Alito that, in using the standard he was proposing, there might be room for some “comparative analysis” of differinig or alternative protocols.
That got him into trouble with Justice Scalia. If comparative analysis of various execution methods is undertaken, Scalia said sharply, “this never ends. If that’s part of the analysis, there will always be some claim that there is some new method devised and once again executions are stayed throughout the country.”
Garre, with some help from Justice Kennedy’s questions, did seek to neutralize the concern about comparing alternatives by saying that such an analysis would only be undertaken if challengers to a particular protocol had succeeded, in the first step of the analysis, in showing a “substantial risk” of greater pain by the method being challenged than with the use of any alternative.
Someone in the argument also called it the “three-judge protocol,” which I think we all agree would be an 8th Amendment violation.
Comment by Becky Troth — January 7, 2008 @ 11:46 am
If remanded, this could go on forever. If Kentucky was the first state to try the 1 drug protocol and it took “too long” to expire the inmate, would that be “cruel and unusual”? What is “too long”?
Comment by David Pancione — January 7, 2008 @ 1:13 pm
I have always been mystified by why States have opted for the three-drug cocktail for death penalties; there are much simpler, cleaner, and less painful ways to kill someone. I oppose the death penalty, but if they’re going to do it, at least they could do it right.
sean s.
Comment by Sean M. Samis — January 7, 2008 @ 2:14 pm
Perhaps this was a Freudian slip:
If the inmates’ challenge to the three-drug protocol were to be upheld and the Court spoke favorably of a *single-judge* protocol, Roberts suggested, the next case would simply challenge that alternative as insufficient.
I’m not so sure about how easily a judge would be able to kill a convicted murderer, but I guess the court would have to further define the standard (what tools he could use, etc…)
Comment by Christopher Nicholson — January 7, 2008 @ 2:55 pm
Highly interesting argument, but legally — this was a mess.
The defendant’s lawyer was disingenuously arguing (1) that there were better ways to kill his client (!), and (2) that everything would be OK if the Court required medical personnel to supervise, knowing full well that this is not possible. Of course the whole farce is about delaying executions interminably instead of outlawing the death penalty itself.
Several Justices were grasping for reasons to expand or contract this case, gleefully prodding the Commonwealth’s attorney to pull in information that was not in the record, or trying to change the basis for deciding.
Scalia laid this whole charade bare when he reminded everyone that “this is an execution, not surgery” and, “Isn’t your position that every form of execution that has ever been used in the United States, if it were to be used today, would violate the Eighth Amendment?”
That’s the end game, to be achieved by any means necessary.
Comment by Tom Barnard — January 7, 2008 @ 3:10 pm
The characterization of sodium thiopental as a “short acting anaesthetic,” while true, plays to the ignorance of the legal profession about such things as the pharmacokinetic properties of drugs. While it may be short acting when administered at ordinary doses, its clearance from the body happens via metabolic pathways that have a fixed capacity. Given the huge doses administered in this setting, it is utterly insensible to even contemplate that a person receiving such an injection could come to within the amount of time spent on an execution. The pathways for metabolism of the drug will be fully saturated, and any potential dysfunction in those pathways would prolong action and not shorten it. The condemned being in such a state, it scarcely matters what means are used to ensure death in a timely fashion. The respiratory depression caused by barbiturates can be highly variable, which is the real reason it is not used as the sole execution agent. There’s the issue of thiopental not being an analgesic, which means that while the condemned is not conscious to experience the pain, the body may still experience stresses owing to it. This however, is hardly a meaningful concern under the circumstances. The objections raised to the execution procedure are simply wrong as a matter of fact, and the election of another would just amount to unnecessary delay over something that is of no material consequence.
Comment by Steve Abbott — January 7, 2008 @ 3:32 pm
What a mess it was indeed. Would the defendant’s counsel not complain if the state executed his client with a 1 drug protocol? Would he protest later that it took too long? I can understand why no state has taken the 1 drug method. It’s admitting that the 3 drug method is no good anymore after 25 years. Maybe they should take another case for this term like Taylor from the 8th Circuit if they need another vehicle to sort out this mess.
Comment by David Pancione — January 7, 2008 @ 3:46 pm
Has the Court released an audio version of today’s arguments?
Comment by Robbie Sherman — January 7, 2008 @ 4:33 pm
Tom Barnard pretty much nailed it in his comments. Every single person who spoke in that courtroom was being completely disingenuous on what was really at issue here – except for Scalia.
Comment by Justin Levine — January 7, 2008 @ 5:04 pm
…and perhaps Alito.
Comment by Justin Levine — January 7, 2008 @ 5:08 pm
Audio version on CSPAN 2 tonite at 8:30.
Comment by David pancione — January 7, 2008 @ 5:36 pm
I was encouraged by Justice Kennedy’s comment at pages 48-49 of the transcript. He is aware that “endless litigation” is what this is really about, and that is a bad thing.
Comment by Kent Scheidegger — January 7, 2008 @ 5:43 pm
Mr. Barnard’s comment is absolutely right. Much as I hate to admit it Scalia cut to the chase and got to the core of the true issue. There are those of us in this country who believe that the death penalty violates the 8th Amendment and those who like Scalia believe it does not. It is just that simple. But for Scalia to say that the Constitution doesn’t guarrantee the execution be painless is just amazing. Just how then does he define “cruel and unusual punishment.” What in his mind would constitute torture sufficient to violate the Amendment? I understand he is an originalist but I don’t think even the founders of the country would have limited this to torture or they would have used that phrase!
Comment by Joyce Krutick Craig — January 7, 2008 @ 7:55 pm
I hope someone brings this to attention of the powers that be at the court: The stenographer who typed the oral argument in Baze was absolutely awful. He/she must have been some poorly experienced substitute. If anyone has any doubts, read the transcript for yourself at http://supremecourtus.gov/oral_arguments/argument_transcripts/07-5439.pdf
Comment by Jacob Berlove — January 8, 2008 @ 12:06 am
“But for Scalia to say that the Constitution doesn’t guarantee the execution be painless is just amazing.”
Amazing? It is true, and quite obviously so. The Eighth Amendment was still pending ratification when the same Congress that proposed it authorized death by hanging, which nobody thought was a guaranteed painless death.
A “cruel” method of execution was originally understood to be one such as drawing and quartering. It is true enough that there are punishments that were accepted then that would be considered cruel today, such as whipping. But to say that the execution of the death penalty must be completely painless is absurd.
Comment by Kent Scheidegger — January 8, 2008 @ 7:09 am
I found most compelling Verrilli’s early statement that “if the 100 percent of the time the dose of anesthetic is properly administered into the condemned inmate, then we don’t have a significant risk [of pain]“, particularly in concert with Englert’s statement that there was no significant likelihood of excruciating pain “Beyond the absolute bare minimum likelihood that is inherent in any process that involves human beings”. It seems then that Scalia’s “this never ends” is accurate and insightful, for it seems unlikely we can ever devise a procedure with no potential for human error resulting in pain. This in combination with Verrilli’s argument being one not previously raised, as Alito mentions, makes it very hard for me to believe the petitioners can win.
One thing I would have liked to see (I would assume it had been raised earlier) was the question of whether the absence of the second drug would itself constitute cruel and unusual punishment by making a spectacle of the execution. “Dignity” was mentioned numerous times, but I don’t understand why a constitutional argument for its necessity wasn’t made explicit. I think this would have been perhaps more compelling than the need to protect the viewers’ sensibilities.
Also, comment 14 is right on. If you plan to read it, I suggest doing so while listening to the oral recording — several times entire sentences or phrases were missing, a few words were entirely mistranscribed (”information” for “euthanasia” in an organization name!), to name just a few that I remember.
A final note: the most glaring of the errors in the transcript was the consistent misspelling of “barbiturate” as “barbituate”. I could appreciate mishearing or distraction resulting in errors, but this demonstrated a stunning lack of familiarity with the key terms used in the arguments.
Comment by Jeff Walden — January 8, 2008 @ 7:10 am
Jeff,
“One thing I would have liked to see (I would assume it had been raised earlier) was the question of whether the absence of the second drug would itself constitute cruel and unusual punishment by making a spectacle of the execution. “Dignity” was mentioned numerous times, but I don’t understand why a constitutional argument for its necessity wasn’t made explicit. I think this would have been perhaps more compelling than the need to protect the viewers’ sensibilities.”
I wonder about that myself, how do you relate cruel and unusual to dignity? Which part does it relate to , cruel or unusual or both? Is there really such a thing as killing/dying with dignity?
If there is so, is allowing someone to die with pain a crime? It’s ironic that we want to kill people with the most painless manner, and yet so many terminally ill patients suffer more natural pain while they die.
Comment by Chee Foong Chew — January 8, 2008 @ 12:39 pm
I guess I don’t understand Scalia’s haste to have the executions quickly carried. He says that we just can’t have a “national cessation” of execution that could last for years. But why not? It’s not as if the condemned are going anywhere. I am sensitive to the endless litigation argument, but I don’t see any real problem with remanding to get a more developed record.
Comment by Mortez Jackson — January 8, 2008 @ 4:45 pm
The real problem, Mr. Jackson, is that state criminal justice systems have an interest in not being jerked around by the federeal courts. The Supreme Court, in violation of its own precedent, granted stays where the murderers filed last-minute appeals of their executions on the basis of the cert. grant in Baze. Sans Baze, the stays would never have been granted, and the states would have been free to execute these murderers. Now, the proposal that’s on the table is to fix some of the issues that hinder a decision on the merits by remanding back to the Kentucky courts, while keeping a de facto moratorium in place. Maybe the Supreme Court should have reviewed the case more thoroughly before deciding to grant cert. This is to say nothing about the interest of the state and the victims family, interests reaffirmed in a unanimous decision in Hill v. McDonough? Moreover, as additional evidence comes forward, it certainly is possible that the de facto moratorium is causing the commission of additional murders.
This issue is completely bogus anyway. The alleged problem only occurs if the pancuronium bromide and the potassium chloride do their jobs, but the thiopental does not. So, how does one needle work for the pancuronium bromide and the potassium chloride, but that same needle does not work for the thiopental, which preceded the other two?
Well, at least they didn’t harass the Kentucky lawyer about the Lancet study . . . .
Comment by Sean O'Brien — January 8, 2008 @ 9:12 pm
“I wonder about that myself, how do you relate cruel and unusual to dignity? Which part does it relate to , cruel or unusual or both?”
I’d argue cruel. Given the irrevocability of the sentence, I think it only makes sense to treat an execution as carefully and respectfully as possible, for whatever process is chosen to carry it out (this would mean different standards for different methods of execution).
“Is there really such a thing as killing/dying with dignity?”
I don’t think so, but for such an irrevocable sentence its gravity demands we grant what dignity we can.
“It’s ironic that we want to kill people with the most painless manner, and yet so many terminally ill patients suffer more natural pain while they die.”
I wouldn’t argue for “most painless” manner; I’d argue for an efficient (quick, not prolonged) process not prone to error which, by granting what dignity may be granted (be it by eliminating pain or by strictly respecting ceremonial process, as in execution by firing squad), respects execution as the ultimate irrevocable punishment. With respect the word “most”, I doubt methods are well-ordered, and there is no “best” method.
The critical difference between terminal illness and execution is of course that humans directly and deliberately choose the method of execution in the latter case, but terminally ill patients usually have no choice about the nature or quantity of pain they endure.
Comment by Jeff Walden — January 9, 2008 @ 6:08 am
Because a sentence of death is irrevocable, I’d rather see a vigorous debate on due process, specifically when leading to the sentence of death. More important in my mind, is that we have killed the right person for the right crime.
Far too many innocent people have been wrenched back from the brink of death for my taste, making the manner of death almost irrelevent. Equal justice means we don’t murder innocent people, by any means.
just a thought…
Comment by Ann Lambert — January 9, 2008 @ 8:30 am
Casual comments like 21, spoken without factual support, are far too common these days.
The media have replayed the same story about unreliable convictions to the point that we all now believe it. It behooves us to ask: exactly who are these “innocents” that have been pulled back from the brink of execution? If you are talking about exonerations in rape cases through DNA testing, these tragedies undoubtedly exist. But capital murder cases? Most often, they are reversed for some sort of trial error, negotiated on retrial to a life sentence, or simply not retried for various reasons. These defendants simply cannot be reported as “innocents” no matter how many times the media says so.
Comment by Kim Schaefer — January 9, 2008 @ 2:12 pm