JEMS.com Editor s Note: Read about ethics in EMS and whether medical professionals should participate in prison executions in the 2006 October JEMS article, Between Black & White. Paid subscribers can click here to access it.
WASHINGTON, D.C. -- U.S. Supreme Court justices did not seem to question Monday whether Kentucky's government tries to make its executions pain-free.
But in grappling with their most significant death-penalty case in years, several justices asked whether Kentucky's lethal three-drug "cocktail" ensures that prisoners are executed in the most humane way possible.
Other justices expressed concern that death-penalty opponents were employing a back-door method of holding up executions that would lead to endless rounds of litigation. The divided court seems to be weighing whether to order lower courts to search for more definitive answers about the most humane method of lethal injection.
The case already has led to death-penalty delays. Ohio and other states employing a similar lethal-injection method have held off on carrying out executions pending the Supreme Court decision.
The issue before the high court is not whether the death penalty is constitutional, or even whether it is permissible to use lethal injection as a method. The question is whether Kentucky's three-drug cocktail could lead to painful deaths, violating the Eighth Amendment to the Constitution prohibiting cruel and unusual punishment.
The case involves two convicted murderers on Kentucky's Death Row: Ralph Baze shot two law-enforcement officers trying to serve him with an arrest warrant; and Thomas Bowling killed a married couple in front of their young child.
The three-drug method is employed in Ohio and a number of other states. First, an anesthetizing barbiturate is administered to prevent subsequent pain, then a paralyzing agent to prevent involuntary movement during death, and finally the drug potassium chloride, which actually kills the person.
Opponents say mistakes in administering the first drug can lead to an agonizing death because the final drug, which causes cardiac arrest, inflicts severe pain as it goes through someone's veins. The person might be left conscious by an improper administration of the first drug, but be unable to communicate that because of the second drug's paralyzing effect, they say.
"Kentucky's lethal-injection procedures pose a danger of cruelly inhumane executions," Donald B. Verrilli, a Washington lawyer arguing on behalf of the Kentucky prisoners, told the justices.
Critics have pointed to a pair of drawn-out executions in Ohio. One involved a 90-minute delay in the execution of Christopher J. Newton last year when paramedics had trouble attaching intravenous lines. In 2006, the execution of Joseph Clark was stopped for an hour when a vein collapsed after an IV line was inserted.
Verrilli suggested that administering a single, massive dose of barbiturate would kill someone more humanely and not result in "torturous" pain even if the procedure was botched. Kentucky law requires euthanizing animals in that fashion, he noted.
But Roy Englert, the attorney for the state, said there is no evidence that the single-barbiturate method would not have problems of its own.
Although the single-drug method has never been used in executions, Kentucky worked hard to ensure its three-drug mixture was applied in a professional and humane manner, Englert added.
Justices Stephen G. Breyer and David H. Souter suggested that lower courts perhaps should study how to most humanely carry out lethal injections.
"Perhaps the right word is, is there a significant risk that can be easily averted, and what I'm worried about here is, do we or do we not send it back," Breyer said.
But Justice Antonin Scalia said he is "very reluctant to send it back to the trial court so we can have a nationwide cessation of all executions," possibly for firstname.lastname@example.org