WASHINGTON — The Supreme Court revealed sharp death-penalty differences Monday as justices weighed Kentucky's lethal-injection method for executions.
The court appears destined for another close decision, with several justices suggesting that further litigation should explicitly compare Kentucky's death-penalty procedures with several alternatives. If questions are clues, death row inmates Ralph Baze and Thomas C. Bowling could be in court for some time.
"Wouldn't it be better to get (this) one case litigated thoroughly?" Justice David Souter asked rhetorically. "We want some kind of definitive position here."
Justice Stephen Breyer seemingly agreed, admitting that he was "left at sea" because of key unanswered questions and further noting that justices could "send (the case) back" for further study of execution methods. Neither Kentucky nor the Bush administration wants this to happen.
"There will be endless litigation in a regime where there is no finality," Deputy Solicitor General Gregory Garre warned.
Baze and Bowling, joined by death-row inmates in California and other states, argue that the three-drug lethal-injection procedure commonly used nationwide violates the Eighth Amendment's ban on cruel and unusual punishment. They aren't challenging the death penalty itself or the general concept of lethal injection.
Instead, the death row inmates contend that they're at risk of unbearable agony if the anesthetic, paralyzing agent and heart-stopping drugs are administered improperly.
"The pain that is inflicted here when things go wrong is tortuous," attorney Donald B. Verrilli Jr. told the court.
The court's most conservative justices sounded skeptical, with Chief Justice John G. Roberts joining Justices Samuel Alito and, in particular, Antonin Scalia in raising doubts about the claims.
"Where does it come from that you must find the method of execution that causes the least pain? Is that somewhere in our Constitution?" Scalia asked rhetorically, adding that "there's no 'painless' requirement" in the Eighth Amendment.
The case, as often happens, could come down to Justice Anthony Kennedy, who didn't tip his hand Monday
Unlike abortion or affirmative-action cases, Baze v. Rees didn't draw a large crowd of protesters to the Supreme Court steps Monday. Still, a long line of people waited to claim public seats, including five University of North Carolina at Chapel Hill students who arrived at 3 a.m. Spectators also included Kentucky law-enforcement officers and the family members of murder victims.
"I was 14 when it happened; I'm 30 now. That's more than half my life. It's time to bring this to an end," said Dennis Briscoe, a Winchester, Ky., police officer who wore his uniform to Monday's proceedings.
Briscoe, whose father and uncle were shot by Baze on a wooded ridge on Jan. 30, 1992, said he'd watched the legal gymnastics and listened carefully to the arguments.
Orville Bennett, whose brother Steve also was killed by Baze, expressed similar concerns.
"Ralph's talking about pain, his pain," Bennett said Monday. "He put our family through pain all these years. I hope the Supreme Court makes a ruling on lethal injection so that no other family will have to go through the kind of prolonged pain we've had to go through."
Justices spent little time Monday addressing the potentially significant legal question of what standard should be used in assessing Eighth Amendment claims. Inmates want punishments banned if they present an "unnecessary risk" of pain, while state and federal government officials want punishments banned only if they pose a "substantial" risk of pain.
If the justices decide they need more information, a trial court would analyze the three-drug lethal injection procedure compared with proposed alternatives, including a single massive barbiturate overdose.
"There are non-painful ways of stopping the heart," Verrilli said.
More than 900 death-row inmates have been executed through lethal injection since the three-drug method was concocted in Oklahoma three decades ago. Execution squads first inject thiopental, a barbiturate meant to anesthetize the inmate. Pancuronium bromide paralyzes the inmate and stops convulsions, and potassium chloride stops the heart.
Currently, 35 out of 36 capital-punishment states use lethal injection, and half of them have joined in a legal brief supporting Kentucky's position.
"Kentucky has excellent safeguards in place," Washington-based attorney Roy T. Englert Jr. told the court, adding as an example that "Kentucky really has the most qualified person in the state place the IVs" in the inmates.
Although Kentucky has executed only one inmate through lethal injection over the past decade, prison teams practice execution procedures monthly, Englert said Monday.
Critics claim that the teams are unqualified and that pancuronium bromide primarily protects witnesses from the ugly vision of a dying inmate thrashing on a gurney. Justice John Paul Stevens endorsed this concern Monday, saying that he was "terribly troubled" by the use of the paralyzing drug, but he acknowledged that the current case might not yet present the information needed to prohibit the drug.
Kentucky officials further sought to reassure the court that, contrary to critics' concerns, execution teams are capable of knowing if the anesthetic hasn't been properly applied.
"If that happens," Englert said, "the inmate will be awake and screaming."
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