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Analysis: Reopening a very old issue

Not since March 17, 1879, has the Supreme Court faced a constitutional test over a method of carrying out the death penalty. On that day, in Wilkerson v. Utah, it upheld a court’s order that one Wallace Wilkerson be taken to a place within the Utah Territory “and that you there be publicly shot until you are dead” — that is, by firing squad. (NOTE: See the Comment below for a suggestion that the Court has ruled on a constitutional challenge to an execution method more recently than 1879 — In re Kemmler, in 1890, involving the electric chair.)

In a 13-line order released on Tuesday morning, the Court opted to return to that question — this time, apparently, to lay down a legal standard on when it could violate the Eighth Amendment to execute a convicted individual by using a three-chemical combination — a specific protocol now in use in 36 states. (Among the 38 states that retain the death penalty, only New Jersey uses a different lethal injection protocol, and Nebraska executes only by the electric chair.)

The grant of review in Baze v. Rees (07-543) instantly converted the new Term into a time for high-profile exploration of the most significant unresolved issue on capital punishment — assuming that states will still be allowed to have the death penalty. (Click the following links to read the petition, brief in opposition and reply.) The Court, of course, will not be ruling on whether lethal injection as such is unconstitutional, and certainly not on whether the death penalty in any form is always unconstitutional, but rather will decide the standard for determining whether a particular chemical combination causes too much pain and suffering to be allowed. Still, the fact that the case will be pending may well shut down executions across the country. As Ohio State professor Douglas A. Berman said Tuesday on his Sentencing Law and Policy blog, “This is huge news which could (and probably should) lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling.”

The issue at stake is one that the Supreme Court has repeatedly passed up. In decisions in 2004 and 2006, it had ruled that inmates facing execution by lethal drugs could file civil lawsuits to challenge the method in their state, but it had not returned to the issue to judge the outcome in any such case. Three and perhaps four Justices have expressed an interest in the issue, but no review was forthcoming. Since then, according to the petition in the newly granted case, “at least half of the death-sentenced inmates facing an imminent execution have challenged various aspects of the lethal injection process, placing pressure on the lower courts and this Court to resolve this complex issue under the shadow of an execution date.”

What makes this case different, according to attorneys for the two men filing the appeal, Ralph Baze and Thomas C. Bowling, is that the two do not face an impending execution so “this case is not one of those last minute attempts to stave off an execution. Nonetheless, the large number of these types of cases percolating throughout the state and federal courts (both under execution warrant and not) indicates the importance of this Court taking this case to articulate the proper legal standard for determining whether a method of execution (or a portion of it) is cruel and unusual punishment [under the Eighth Amendment].”

The petition sums up the historic gap since the Wilkerson ruling in 1879 this way: “Although nearly 1,100 executions have been carried out since the beginning of 1977, this Court has addressed the constitutionality of a method of execution so long ago that the Bill of Rights had yet to be applied to the states, the right to counsel for indigent defendants was an aberration at best, the concept that the Eighth Amendment involved the evolving standards of decency had yet to be articulated, and anyone who was alive then would be at least 128 years old.”

That recital may have attracted the Justices’ attention, but it seems more likely that the fact that this case did not involve an early execution date may well have been more persuasive. It surely was clear, among the Justices, that the issue would continue to return in prisoner appeals. Indeed, the latest case on the question, Taylor v. Crawford (07-303), just arrived on Sept. 5. The Baze case had been filed July 11.

Since 1976, when the Supreme Court reinstated the death penalty as a constitutional matter, the overwhelming majority of executions have been carried out with lethal drugs — 927 executions, compared to 154 by the electric chair, 11 by the gas chamber, three by hanging and two by firing squad — according to data provided by the Death Penalty Information Center in its current summary.

The two individuals involved in the new case were sentenced to death after being convicted of double murders. Ralph Baze, prosecutors said, ambushed and murdered a Kentucky county sheriff and his duty when they attempted to serve felony warrants in 1992. Thomas Bowling, the state said, killed a couple and wounded their two-year-old son as they sat in their automobile in a business parking lot in 1990. In August 2004, the two filed a lawsuit in Kentucky state court to challenge the drug protocol Kentucky authorizes for execution.

The protocol, the most commonly used in the nation, involves the sequential application of sodiuim thiopental, pancuronium bromide and potassium chloride — first adopted in Oklahoma in 1977 but first used in Texas in 1982.

The central issue that the new petition raises actually must be answered before the Court or any lower court could rule on whether this particular protocol is unconstitutional. Assuming that the Court can agree on a standard, it might not go on to apply that standard in the Baze and Bowling case, but could return their lawsuit to Kentucky state courts for an answer to that queston.

The petition asks the Court to lay down this standard: a method of execution, using legal drugs, violates the Eighth Amendment if it creates “an unnecessary risk of pain and suffering,” rather than the standard the Kentucky Supreme Court relied upon: the Amendment is violated if the method creates “a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death.”

In addition to resolving that dispute, the petition urges the Court to rule that the Amendment is violated in particular when a state has “readily available alternatives” to the existing protocol and those alternatives would “pose less risk of pain and suffering.” The third question directly addressed the validity of the specific three-drug protocol used in Kentucky, in the face of eidence that other chemicals are available to complete executions.

Finally, the appeal raises the issue of whether states have a constitutional obligation to provide a means to revive the condemned individual and spare his life, if the drug protocol has been started but is interrupted by a stay of execution. The trial court in their case ridiculed that argument, suggesting that the inmates’ argument would require “that all executions take place in a trauma center with a team of cardiac surgeons standing by.”

Because of the importance of the case, and its widespread impact, it is expected to attract a wide array of amicus filings, on both sides of the case. The Court put the case on an expedited review schedule, but it appears that the oral argument would not be held before the January sitting, which begins Jan. 4.