TBO.com - TBO is Tampa Bay Online

Decision May Reopen Death Chamber

ADVERTISEMENT

By DAVID G. SAVAGE

Los Angeles Times

Published: April 17, 2008

Updated: 04/17/2008 12:13 am

WASHINGTON - A national drive to halt the death penalty met defeat at the Supreme Court on Wednesday when the justices ruled that lethal injections, if properly administered, are a humane means of executing a condemned prisoner.

With a 7-2 vote, the court rejected a constitutional attack on the main method of carrying out the death penalty across America. Its ruling cleared the way for executions to resume after a seven-month delay.

Since October, officials and judges in several states, including Florida, have put executions on hold while awaiting the outcome of the Kentucky case decided Wednesday.

The court's opinion by Chief Justice John Roberts confirmed there is strong support for the death penalty among the justices and an unwillingness to tolerate endless delay.

"We begin with the principle ... that capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out," Roberts wrote.

"Some risk of pain is inherent in any method of execution - no matter how humane - if only from the prospect of error in following the required procedure."

Roberts said the court would not allow a theoretical risk that a future execution would be botched to stand in the way of carrying out the death penalty.

He also set a high bar for future challenges to carrying out an execution.

To win a halt to an execution, defense lawyers must show there is a "substantial risk" that the condemned prisoner will suffer "severe pain," the chief justice said.

"A state with a lethal injection protocol substantially similar to the protocol we upheld today would not create a risk that meets this standard," he said.

Agreeing with Roberts, Justice Samuel Alito added a note to say the court should not allow "litigation gridlock" to "produce a de facto ban on capital punishment." Justice Anthony Kennedy also agreed with Roberts.

Justices Clarence Thomas and Antonin Scalia said they would go further and reject all challenges to an execution method unless it is "deliberately designed to inflict pain."

Officials Move Quickly

Florida Attorney General Bill McCollum asked the high court to allow the state to go ahead with the execution of child killer Mark Dean Schwab because Florida's method of execution is nearly identical to the method upheld in the Kentucky case.

The court had stopped the Schwab execution, and McCollum filed paperwork Wednesday afternoon seeking to have the order lifted.

Also, Gov. Charlie Crist asked for a "very short list" of the worst death row inmates so he can sign his next death warrant. There are 388 people on death row.

Despite the lopsided outcome in the Supreme Court case, a deep split remains on capital punishment among the justices. Death penalty cases that come before the court often are decided by a 5-4 vote.

Justice John Paul Stevens, who will be 88 years old Sunday, said his three decades on the court have convinced him that the death penalty should be ended.

Nonetheless, Stevens voted with Roberts to reject the challenge to lethal injections, since there was no evidence that Kentucky's approach is badly flawed. Justice Stephen Breyer agreed for much the same reason.

Giving Way To 'Humane Methods'

Justices Ruth Bader Ginsburg and David Souter stood alone in dissent. They said they would maintain the hold on executions because Kentucky "lacks the basic safeguards" to ensure the inmate dies a painless death.

The argument against the three-drug protocol used in executions is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.

Last year, defense lawyers appealed on behalf of two Kentucky inmates and argued that the court should say it is unconstitutional "cruel and unusual punishment" to subject prisoners to an "unnecessary risk" of pain. Death penalty foes were cheered in the fall when the court agreed to hear this challenge.

Taking a longer view, Roberts noted that the Supreme Court has never struck down an execution method as unconstitutional. Nonetheless, states have made steady progress in finding better ways to execute prisoners, he said.

"The firing squad, hanging, the electric chair and the gas chamber have each in turn given way to more humane methods, culminating in today's consensus on lethal injections," Roberts said.

Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty, said the court had sidestepped the issue of whether the death penalty is just and proper.

"The Supreme Court addressed the method but not the madness," Elliott said. "There's no right way to do the wrong thing."

Tribune reporter Valerie Kalfrin contributed to this report. Information from The Associated Press also was used.

Loading Comments...

Email Print

ADVERTISEMENT