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Injection Argument Made

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By DAVID G. SAVAGE, Los Angeles Times

Published: January 8, 2008

WASHINGTON - The Supreme Court gave a skeptical hearing Monday to lawyers who are challenging the use of lethal injections to carry out executions in the United States.

The case before the court comes from Kentucky, in which two death row inmates are not asking to be spared execution or death by injection. Instead, they want the court to order a switch to a single drug, a barbiturate, that causes no pain and can be given in a large enough dose to cause death.

At the very least, they are asking for tighter controls on the three-drug process to ensure that the anesthetic is given properly.

Death-penalty foes had hoped the court was about to rein in the most commonly used method of execution, but there were few signs of that during the oral argument.

Instead, in comments and questions, justices said they were not convinced that the commonly used, three-chemical compound causes inmates to die a painful death. They also said they were not convinced a better method was available.

If these three drugs are "properly administered," the inmate should die peacefully, Chief Justice John Roberts told a lawyer for a Kentucky death-row inmate.

"The risk here is real" that the drugs will not be administered correctly, said Donald Verrilli Jr.

If the inmate is not given enough anesthetic and is then given a paralyzing drug, he may be fully awake on the execution table, yet unable to react when he is given a heart-stopping drug that causes searing pain, he said.

"That's why it is illegal in Kentucky to euthanize animals this way," Verrilli said.

Death-penalty states, including Florida, have moved away from using electrocutions or the gas chamber to execute inmates and adopted lethal injections. More than 30 years ago, with little public debate, states decided to use a three-drug concoction. It includes an anesthetic, a paralyzing agent and a heart-stopping drug.

In recent years, this formula has been cast into doubt. In the Kentucky case, defense lawyers argued that veterinarians do better with the use of a single, powerful barbiturate to put horses to death.

Lawyers for the Kentucky inmates asked the court to rule that the three-chemical compound causes "an unnecessary risk of pain" and should therefore be struck down as unconstitutional.

That argument appeared to gain little traction.

Justice Stephen Breyer said he was not convinced that the use of a single anesthetic had been shown to be an effective and reliable way to end human life. He cited a study from the Netherlands that questioned its use in euthanasia.

"Is there more problem here than with other execution methods?" he asked Verrilli.

The court may decide the Kentucky case is not the right one to settle the constitutionality of the three-drug procedure and leave that issue for another death penalty case.

Justice David Souter, however, urged his colleagues to take the time necessary to issue a definitive decision about the three-drug method in this case, even if it means sending the case back to Kentucky for more study by courts there.

Justice Antonin Scalia, however, said such a move would mean "a national cessation of executions" that could last for years. "You wouldn't want that to happen," he said.

Recent executions in Florida and Ohio took much longer than usual, with strong indications that the prisoners suffered severe pain in the process. Workers had trouble inserting the IV lines that are used to deliver the drugs.

Scalia said the defense lawyers are simply trying to stop executions. If the court agrees there are problems with Kentucky's method, "this never ends," Scalia said.

The battle in the court over lethal injections has temporarily halted executions across the nation.

A decision should come by late June.

Information from The Associated Press was used in this report.

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