Posted Apr 16, 2008 02:34 pm CDT
Updated: The U.S. Supreme Court has ruled that the most common lethal injection procedure does not violate the Constitution.
“Petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment,” Chief Justice John G. Roberts Jr. wrote in a plurality opinion. He was joined by only two other justices, but four others agreed with the outcome, producing the 7-2 ruling.
The dissenters were Justices Ruth Bader Ginsburg and David H. Souter, the Associated Press reports.
The ruling concerns the three-drug cocktail used in Kentucky. It is similar to the method used by many of the 36 other jurisdictions that provide for lethal injection. But the court’s opinion may leave the door open for additional challenges to execution methods.
Roberts said an inmate who challenges a death-penalty method cannot succeed “merely by showing a slightly or marginally safe alternative.” Instead, there must be proof that better options would prevent a “substantial risk of serious harm.”
But Justices Antonin Scalia and Clarence Thomas advocated a test that makes it more difficult to challenge executions. They said capital punishment should be permitted unless it is deliberately designed to inflict pain.
Justice John Paul Stevens agreed with the result, although his concurring opinion sounded at times like a dissent. Stevens said precedent required the finding that the Kentucky procedure was constitutional but the case nonetheless raised important policy questions.
“When we granted certiorari in this case, I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not,” he wrote. “The question whether a similar three drug protocol may be used in other states remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself. …
“It is unseemly—to say the least—that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets.”
Story was updated several times to supply additional details.