PREVIEW: US high court to debate the how, not why, of death penalty

Jan 5, 2008, 3:13 GMT

Washington - It's quite the moral dilemma for human rights activists - how do you argue in favour of a 'humane' method of capital punishment, when your stated goal is to abolish state executions altogether?

The US Supreme Court will hear arguments in just such a case on Monday. Lawyers in Baze versus Rees will debate whether lethal injections used by states to execute condemned inmates are legal under the US Constitution, which prohibits cruel and unusual punishment.

Two inmates facing execution in Kentucky are challenging the standard form of lethal injection - a three-drug concoction - that they say can cause excruciating pain if not administered properly.

The case has led to a de facto moratorium in the 36 of 37 death penalty states that use injections pending the court's decision. Nebraska uses the electric chair.

Yet even if the Supreme Court rules in favour of the two inmates on death row, it will simply require states to use a different, painless method - one that activists say is readily available.

But that puts human rights organizations in an uneasy position. Human Rights Watch, in a brief to the court, argued for a 'clear and practicable standard - whether the method of execution utilized inflicts the minimum possible pain and suffering.'

The brief makes no mention of the group's actual position - that the death penalty is inhumane under any circumstances. The American Civil Liberties Union has the same goal of abolishing the punishment, but in its own brief chose to focus on the 'secrecy' surrounding execution methods.

Jamie Fellner, an attorney at Human Rights Watch, acknowledged the dilemma but said the ultimate goal should not preclude groups from finding a less painful form of execution.

'The idea of a 'humane execution' is a contradiction in terms. But if states are going to put people to death, they must choose the drugs and methods that carry the least risk of pain and suffering for the condemned,' Fellner said in a statement.

But capital punishment advocates have derided the case as a closet tactic to halt executions. Kentucky argues that the US Constitution does not require use of the best method of execution available, only that the method should not carry a 'substantial risk' of causing pain.

'Is a state constitutionally required to change its method of execution every time an alternative with a lower risk of pain is shown to be available, thereby creating a permanent new layer of litigation in capital cases?' the Criminal Justice Legal Foundation, a California-based victim's rights group, wrote in its brief to the court.

The current lethal injection method, used by Kentucky and most other states, involves administering three chemicals in order: sodium thiopental renders the condemned unconscious, pancuronium bromide paralyses them and potassium chloride stops the heart.

The inmates' lawyers argue that the three-drug method is complicated and open to mistakes: if the initial chemical is administered incorrectly, the victim could be conscious and would experience tremendous pain when the last drug is injected. A person would suffer in silence because of the paralytic.

Instead, they suggest that the first drug could be used on its own. An overdose of a barbiturate like thiopental is lethal on its own, eliminating mistakes and the risk of causing pain. But detractors argue that the method is untested, could take as long as 40 minutes and cause involuntary muscle contractions which, though not painful, would be difficult for witnesses to watch.

Either way, discussion of an alternative method provides little solace to those who hope the United States - the only Western nation to allow state-sanctioned executions - will abolish the practice altogether.

The court also agreed Friday to hear another death penalty case, which centres on whether prisoners can be executed for crimes that do not involve the death of the victim. In that case, Kennedy versus Louisiana, a man has been sentenced to death for the rape of his 8- year-old stepdaughter. Five states allow executions for child rape.