Death Penalty

Pending Case May Halt Executions


When lethal injection was adopted in the 1980s, supporters said it was a better alternative to the electric chair.

Now judges in the 37 states that use the procedure may block its use until the U.S. Supreme Court decides a Kentucky inmate’s challenge to its constitutionality, the New York Times reports. Yesterday the court accepted the case, Baze v. Rees.

Law professor Douglas Berman of Ohio State University wrote about the cert grant on his blawg, Sentencing Law and Policy. “This is huge news which could (and probably should) lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling (which might not come until June 2008),” he said.

Courts have already halted lethal injections in nine states due to inmate challenges. They are California, Delaware, Florida, Maryland, Missouri, New Jersey, North Carolina, Oklahoma and Tennessee.

Critics say the most common three-drug lethal injection cocktail sometimes paralyzes inmates but fails to block their pain, making them unable to cry out to show the anesthesia is not working.

The Kentucky case asks the U.S. Supreme Court to determine the standard courts should use when assessing whether the cocktail violates the Eighth Amendment ban on cruel and unusual punishment. The Kentucky Supreme Court ruled the procedure was constitutional because it did not create a substantial risk of pain and suffering.

“The prohibition is against cruel punishment and does not require a complete absence of pain,” the court said.

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