The Supreme Court Brings Back the Death Penalty

By Liliana Segura, AlterNet. Posted April 17, 2008.

The Supreme Court just made a decision that will send prisoners across the country to their deaths.

In a 7 to 2 ruling, it upheld lethal injection as currently carried out as constitutional, ending a de-facto moratorium on state-sanctioned murder.

Executions in the United States had been on hold since last September, when the court decided to take on the case of Baze v. Rees. At stake was the question of whether Kentucky's lethal injection protocol violated the Eighth Amendment prohibition of "cruel and unusual punishment." The three-drug killing technique or some version of it -- a paralytic, a barbiturate, and a dose of potassium chloride -- is used in 35 out of 36 death penalty states. (Nebraska, whose sole method of execution used to be electrocution, ruled the electric chair unconstitutional this past February.) As states froze their execution machinery to await the justices' ruling, not a single execution was carried out for seven months. Last-minute stays of execution aside, it was a glimpse into what the United States might look like without the death penalty.

Baze represented a critical development in death penalty litigation, the first time the court has considered a specific method of execution since it upheld the firing squad in 1878. Ever since the Supreme Court's last-minute intervention in the case of Florida death row prisoner Clarence Hill -- he was strapped onto a gurney with intravenous lines in his arms -- in January 2006, the stage had been set for a showdown on lethal injection. When the court ruled later that year that prisoners could appeal their death sentences based on the possibility that lethal injection is cruel and unusual, a wave of appeals swept the country.

Now, those prisoners have lost significant legal footing and with it, very possibly, the right to live. "While the opinion appeared to leave open a chance that some further challenges could be made to the use of lethal drugs under a specific procedure in another state," explained Lyle Denniston at SCOTUSblog, "... the opinion also appeared to mean that the three drugs now used in all of those jurisdictions do not, alone or in combination, fail the court's new standard."

In other words, the country's preferred execution method is now insulated by a legal precedent.

This is a serious blow to death penalty opponents who hoped that disabling the death machinery would lead to abolishing it. It is also, in many ways, the result of a frustrating failure of legal strategy. The attorneys who argued Baze did so on very narrow grounds, contending that Kentucky's lethal injection protocol is broken, but not beyond repair. "One needs a person trained in monitoring anesthetic death to participate in the process," defense attorney Donald Verrilli suggested, not only encouraging the controversial notion that medical professionals have a role in carrying out executions, but also encouraging the court to treat botched executions as an aberration; freak accidents that rarely occur. "The court has held that an isolated mishap alone does not violate the Eighth Amendment," wrote Chief Justice John Roberts in the decision. But states from California to Florida have had lethal injections go horribly wrong in recent years; with states often secretive about their execution procedures -- and many not keeping data on file about them -- how "isolated" these incidents are is largely unknown.

Lethal injection is often described as a "three-drug cocktail." The first drug is the barbiturate sodium thiopental; the second, a paralytic called pancuronium bromide; and the third, potassium chloride, which stops the heart. The technique has been favored by death penalty supporters who find appeal in its medical veneer. In theory, if the drugs are administered correctly, the victim will die quickly and painlessly. But in reality, executioners, contrary to the assumption of many, usually have little or no medical training. If they wrongly administer the first drug, the result can be grisly.

Take the case of Joseph A. Clark, a death row prisoner in Ohio. On the day of his execution in May 2006, it took the execution team 22 minutes to find a vein -- a not uncommon problem. Shortly after the catheter was finally inserted, Clark's vein collapsed and his arm began to swell, at which point, he lifted his head. "He said 'It don't work, it don't work, it don't work, it ain't working,' about five times," one witness later described. At that point, the gurney was concealed by curtains. Thirty minutes later, there was "moaning, crying out and guttural noises." An hour and a half after the start of the execution, Clark was dead.

See more stories tagged with: death penalty, capital punishment, lethal injection, supreme court, 8th amendment

Liliana Segura is a staff writer, editor of Rights & Liberties Special Coverage, and a board member of the Campaign to End the Death Penalty.

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