WASHINGTON — The Supreme Court on Wednesday upheld Kentucky's use of lethal injection as a means of executing prisoners, although the justices' splintered reasoning ensures legal challenges to the death penalty will continue.
All told, seven of the court's nine justices agreed that the specific lethal injection procedures employed by Kentucky and most other states don't violate the Eighth Amendment's ban on "cruel and unusual" punishment.
"Capital punishment is constitutional," Chief Justice John Roberts Jr. stated Wednesday morning, "so there must be a means of implementing it."
Only punishments that present a "substantial" or "objectively intolerable" risk of serious additional harm violate the Eighth Amendment, Roberts added. States cannot be forced into adopting alternative methods of execution unless they're "feasible" and can "significantly" reduce the risk of severe pain.
In the short run, the decision permits Kentucky to deploy a three-drug combination intended for the execution of convicted multiple murderers Ralph Baze and Thomas C. Bowling. Thirty of the 36 states that permit the death penalty specify using the same drugs. Five other states permit lethal injection without specifying the three-drug blend.
Nebraska, the one holdout, still prefers electrocution.
For more than six months, a de facto moratorium has stopped all executions nationwide while officials awaited the Supreme Court's decision in the Kentucky challenge. By Wednesday afternoon, Virginia Gov. Tim Kaine issued a written statement promising to resume the state's scheduled executions.
But with justices filing an extraordinary seven separate opinions Wednesday, and with no one line of reasoning securing a majority, the complicated case known as Baze v. Rees tinkers with rather than resolves the larger death penalty controversy.
"I assumed that our decision would bring the debate about lethal injection as a method of execution to a close," Justice John Paul Stevens wrote. "It now seems clear that it will not."
Stevens used the Kentucky lethal injection case to declare his personal objection to capital punishment without regard to the specific technique used. Stevens has previously backed capital punishment, including in the landmark 1976 case Gregg v. Georgia, which reinstated the death penalty following a several-year moratorium.
"I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contribution to any discernible social or public purposes," Stevens wrote Wednesday.
Stevens' shifting point of view prompted a remarkably sharp-tongued response from Justice Antonin Scalia, a death penalty supporter who called his colleague's new position "astounding." Stevens' position, Scalia said sarcastically, seems to be that his "experience reigns over all."
On its face, Baze v. Rees didn't challenge the constitutionality of the death penalty.
The case arose after Baze was convicted of shooting a sheriff and deputy in the back. Bowling was convicted of shooting a married couple in front of their 2-year-old child.
Both men now face execution under a three-drug protocol first developed three decades ago in Oklahoma.
The drug pancuronium bromide paralyzes the inmate. This "eliminates convulsions and thus provides a dignified death to the inmate and witnesses to the execution," Kentucky's attorneys argued in legal briefs. Another drug, sodium thiopental, is an anesthetic now rarely used in hospitals. A third drug, potassium chloride, stops the heart.
Taken together, the drugs ensure that death-row inmates will die in a "relatively humane manner," Kentucky's attorneys argued. Administered improperly, inmates' attorneys responded, the drug combination can be torture.
In December 2006, for instance, Florida murderer Angel Diaz took 34 minutes to die. Twelve-inch chemical burns were later found on both of his arms, but the paralyzing drug would have rendered him incapable of showing pain.
"Lethal injection as a mode of execution can be expected, in most instances, to result in painless death," Justice Ruth Bader Ginsburg wrote in dissent, joined by Justice David Souter, but "the consequences of a mistake ... are horrendous."
Of the 1,099 executions that have occurred since the 1976 Gregg case, 929 have been through lethal injections, according to information compiled by the Death Penalty Information Center. Some 3,340 inmates are on death row nationwide.
Attorneys for Baze and Bowling argued that Kentucky was violating the Eighth Amendment because the state refused to use a safer method of execution, such as massive overdose of a single drug. Roberts, though, cautioned that he didn't want courts to become "boards of inquiry charged with determining `best practices' for execution."
Kentucky's "continued use of the three-drug protocol cannot be viewed as posing an `objectively intolerable' risk when no other state has adopted the one-drug method," Roberts reasoned.
Roberts' reasoning was joined by only two other justices. Five other justices — interestingly, including Stevens — wrote separate concurring opinions that offered different reasons for reaching the same conclusion.