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And I'm Robert Siegel.
At the Supreme Court today, important arguments about the method of execution used in most states, specifically, whether it violates the Constitution's ban on cruel and unusual punishment. This was not a challenge to the death penalty itself, but to the way lethal injections are administered in 36 out of 37 states that have capital punishment.
Today's case focused on the protocol in Kentucky. NPR's Nina Totenberg has our story.
NINA TOTENBERG: Thirty years ago, death by lethal injection was conceived of as a humane way to execute the condemned. But the three-drug protocol has not changed since then, and critics charge that it poses an unnecessary risk of pain and suffering that now can be easily avoided.
Indeed, death penalty opponents note that the protocol used today for executions was long ago abandoned by the American Veterinary Medical Association for use in killing animals because it was deemed unnecessarily cruel.
In Kentucky, a similar protocol is outlawed for animals. Kentucky's execution protocol, basically the same as those in 35 other states and the federal government, is in three steps. First, sodium thiopental is administered to put the condemned prisoner to sleep deeply enough that he feels nothing. The second drug is pancuronium bromide, a paralytic that prevents the prisoner from twitching and having muscle spasms. But anesthesiologists and end-of-life doctors contend that if a person is not properly anesthetized, the paralytic would prevent him from indicating distress, and the third drug, used to stop the heart, would make the condemned man feel as if his veins were on fire if he's not properly anesthetized.
At the Supreme Court today, lawyer Donald Verrilli told the justices that a one-drug protocol with an overdose of a barbiturate would kill a condemned prisoner without the risk of pain and suffering. Justice Breyer said the studies he's read are inconclusive.
Justice STEPHEN BREYER (U.S. Supreme Court): I'm left at sea. I understand your contention, your claim that this is somehow more painful than some other method. But which, well, and what's the evidence for that, the - what do I read to find.
DONALD VERRILLI (Lawyer): The thiopental is a barbiturate, by definition, will inflict death painlessly. TOTENBERG: Breyer noted that death penalty supporters contend this challenge as just a backdoor way to attack capital punishment. Chief Justice Roberts added…
Chief Justice JOHN ROBERTS JR. (U.S. Supreme Court): If you prevail here and the next case is brought by someone subject to the single-drug protocol, and their claim is, look, this has never been tried. We do know that there's a chance that it would cause muscle contractions that would make my death undignified. It will certainly extend how long it takes to die.
TOTENBERG: The argument then turned to the challengers' assertion that the state of Kentucky does not adequately monitor the condemned man's depth of unconsciousness. That's because after the IV lines are inserted in the condemned prisoner, the execution team departs the death chamber and observes from another room, leaving only the warden and deputy warden inside the death chamber to monitor the prisoner at close hand. Lawyer Verrilli argued that the warden and his deputy are not trained to and cannot possibly monitor the depth of unconsciousness. That prompted this from Justice Scalia.
Justice ANTONIN SCALIA (U.S. Supreme Court): Mr. Verrilli, this is, this is an execution, not surgery. The other side contends that to know whether the person is unconscious or not, all it takes is a slap in the face and shaking the person.
Mr. DONALD VERRILLI (Lawyer): There is no slap in the face; there is no shaking the person. All there is, is visual observation by an untrained warden and an untrained deputy warden, who have testified in this case that they don't know what to look for to determine whether somebody is conscious or unconscious.
TOTENBERG: Justice Scalia asked just where the challengers got the idea that the Constitution requires the least painful execution method.
Mr. DONALD VERRILLI (Lawyer): Where does that come from, that you must find the method of execution that causes the least pain? We have approved electrocution, we have approved death by firing squad.
Mr. DONALD VERRILLI (Lawyer):This court's cases have said that the standard is whether the means of execution inflicts unnecessary pain.
Mr. DONALD VERRILLI (Lawyer): Unnecessary and wanton.
TOTENBERG: The tests we are advocating, said lawyer Verrilli, is whether there's a risk of tortuous pain and a readily available alternative. Following Verrilli to the lectern was lawyer Roy Englert, representing the state of Kentucky. We agree, he said, that if the first drug, sodium thiopental, is properly administered, there will be a painless death. Justice Stevens…
Justice JOHN PAUL STEVENS (U.S. Supreme Court): But do you also agree with the counterproposition that if it is not properly administered, there is some risk of excruciating pain?
Mr. ROY ENGLERT (Lawyer): Yes.
TOTENBERG: Englert, however, pointed to the steps Kentucky has taken to ensure that doesn't happen, including 100 practice session for the execution team. Justice Ginsburg then asked about the fact that only the warden and his deputy are actually in the death chamber while the drugs are being administered.
Justice RUTH GINSBURG (U.S. Supreme Court): What seems puzzling to me is the state has made an effort to make sure that the people on the team that inserts the IV, those are well-trained, professional people. But then, apparently, they leave the room, so that once the IV is inserted, there is no professional person that has any further part.
TOTENBERG: She asked that question three times before finally getting an answer. After the IVs are inserted, the team leaves the room and operates from a separate room with a one-way mirror, so that when the curtains are opened in the death chamber, the team members' identities remain unknown to the witnesses and press. Justice Stevens focused on the drugs administered after the barbiturate.
Justice STEVENS: What is the justification for the second drug when it does, that is the drug that creates the risk of excruciating pain?
Mr. ENGLERT: It does bring about a more dignified death - dignified for the inmate, dignified for the witnesses.
Justice STEVENS: The dignity of the process outweighs the risk of excruciating pain.
Mr. ENGLERT: No, your honor. No, it takes a very long time to die with a one-drug protocol. And so…
Justice STEVENS: What's very long, 10 minutes?
TOTENBERG: Lawyer Englert quoted the state's expert as saying it could take as long as 30 minutes. Justice Stevens conceded that the state seems to be doing a reasonable job of carrying out its three-drug protocol, but he added…
Justice STEVENS: I'm 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.
TOTENBERG: By the end of today's argument, it was unclear where the court is heading. Three justices wondered aloud whether the record in the Kentucky case is simply inadequate. The lower courts did not make any finding as to whether a one-drug protocol would pose a lesser risk of pain and suffering.
And Justices Breyer and Souter asked whether the court should send the case back to the lower courts to hear evidence on that question and make a finding. Justice Souter put it this way…
Justice DAVID SOUTER (U.S. Supreme Court): What's disturbing Justice Breyer, disturbing me and others, is we want some kind of a definitive decision here, and it seems to me that 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, okay, do a comparative analysis. Make the findings.
TOTENBERG: But others, like Justice Scalia, disagreed.
Justice SCALIA: I'm 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 and then it goes to another appeal through the state Supreme Court, and ultimately, what you're looking at years.
TOTENBERG: A decision in the case is expected by summer.
Nina Totenberg, NPR News, Washington.