Top US court mulls whether to keep death penalty on hold (Roundup)

Jan 7, 2008, 19:39 GMT

Washington - The US Supreme Court on Monday suggested it may have to send a case over lethal injections used in applying the death penalty back down to lower courts for further review, potentially keeping state executions in the United States on ice for years.

Lawyers before the nine-member court debated whether the kind of lethal injections used by states to execute condemned inmates are legal under the US Constitution, which prohibits cruel and unusual punishment. Attorneys for inmates argue there are pain-free alternatives that states are refusing to use.

The Baze versus Rees case, brought against the state of Kentucky by two inmates on death row, has led to a de facto moratorium nationwide on state executions pending the outcome - something the court's justices were clearly mindful of in their comments at the more than one-hour hearing.

Justice David Souter suggested the case may be thrown back to lower courts, because a 'comparative analysis' of the alternatives to the three-drug concoction currently being used had not yet been discussed properly.

'If we don't do something like that in this case, another case is going to come along and we're going to be right back here,' Souter said. 'We want some kind of a definitive decision here, and it seems to me the most expeditious way of getting it - if comparative analysis is appropriate and I will be candid to say I think it is - is to send this case back and say, 'do a comparative analysis, make the findings.''

But other justices were mindful of what death penalty advocates have argued is a ploy by opponents to keep capital punishment on the shelf through constant litigation.

'Those who oppose capital punishment entirely across the board are quite willing to take a careful look at all the alternatives,' said Justice Antonin Scalia. 'That's the problem, if we come up with a decision that requires a careful look in every case whenever there's a newly developed method of execution, the problem will always be before us.'

Human rights groups deny that ending the death penalty in the US - the only Western nation that still allows it - is their goal in this case. Humane executions, they say, are an intermediate goal until the practice can be stopped altogether.

Jamie Fellner, an attorney for Human Rights Watch, vowed that 'advocates will continue to fight the death penalty - (but) that doesn't mean that we should permit a method that is known to be flawed.'

The case centres on how the current lethal injection method, used by Kentucky and most other states, is administered. It involves three chemicals given in order: sodium thiopental renders the condemned unconscious, pancuronium bromide paralyses them and potassium chloride stops the heart.

David Verrilli, attorney for the inmates, argued 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. Instead, he said the first drug is itself lethal and could be administered on its own - a painless method even if mistakes are made.

But the state of Kentucky's attorney Roy Englert argued the one- drug method - usually used to put animals to sleep - was untested on humans and would harm the 'dignity' of the condemned. Their death could take as long as 40 minutes and cause involuntary muscle contractions which, though not painful, would be difficult for witnesses to watch.

He also argued there was not a 'sufficient' or wanton risk of pain to prevent the current method from being used, as enough safeguards were in place to prevent accidents.

The court appeared divided. Justice John Paul Stevens questioned why states were applying a method that could potentially cause pain when others appeared to be available.

'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,' he said.

But other justices seemed to back Kentucky's argument that while pain might be caused accidentally, it was not the intention of the state and therefore not unconstitutional.

'Of course there's a risk of human error, there's a risk of human error generally,' said Justice Stephen Breyer. 'But the question here is can we say that there is a more serious problem here than other execution methods.'

'We have approved electrocution. We have approved death by firing squad,' Scalia added. 'I expect those have more possibility of painful death than the protocol here.'

Either way, many justices seemed frustrated with the idea that their decision could potentially keep the death penalty on hold for the foreseeable future - if it either kept a window open for new cases or sent the matter back down for a new trial.

The court was 'very reluctant to send it back to the trial court so we can have a nationwide cessation of all executions while the trial court finishes its work,' Chief Justice John Roberts said. 'Ultimately we're looking at years. We wouldn't want that to happen.'

A decision in the case could come anytime before the court goes into summer recess in June.