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Thursday, April 17, 2008

Ind. Decisions - Still more on: Lethal injection case heard before SCOTUS; Indiana implications

Updating this ILB entry from yesterday, several stories today cite Justice Ginsburg's dissent contrasting the Kentucky procedure with that of several other states, including Indiana. The discussion begins at p. 93 of the PDF document (p. 7 of the dissent):

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentucky’s protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 19– 23. * * *

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmate’s name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06–cv–1859 (SD Ind.), pp. 199–200, online at http://www.law.berkeley.edu/clinics/dpclinic/ LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). [ILB - This 211-page transcript is available here.]

These checks provide a degree of assurance—missing from Kentucky’s protocol—that the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

Linda Greenhouse's lengthy story today in the NY Times includes the following:
While the 7-to-2 ruling did not shut the door on challenges to the lethal injection protocols in other states, it set a standard that will not be easy to meet. Chief Justice John G. Roberts Jr. said in the court’s controlling opinion that challengers must show not only that a state’s method “creates a demonstrated risk of severe pain,” but also that there were alternatives that were “feasible” and “readily implemented” that would “significantly” reduce that risk.

“A slightly or marginally safer alternative” would not suffice, the chief justice said. He added: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the Eighth Amendment.

Dozens of executions have been delayed around the country in recent months. Gov. Tim Kaine of Virginia, a Democrat, announced within hours of the ruling that he was lifting a moratorium on executions he had imposed, and other states were expected to follow.

The Supreme Court itself had not imposed a general moratorium, instead granting individual stays of execution in cases that reached the court. Those stays will dissolve automatically when the justices deny the underlying appeals, as they are expected to do in the next week or two.

At issue in the Kentucky case was not the constitutionality of lethal injection itself, the method specified by 35 of the 36 states that have the death penalty. (Nebraska is the exception.) Rather, the challenge was to the details of the injection’s administration: the chemicals used, the training of the personnel, the adequacy of medical supervision, and the consequences and risk of error.

The legal question was what standard to apply in evaluating the risk. The appeal, brought by two men on Kentucky’s death row, Ralph Baze and Thomas C. Bowling, each convicted of double murders, asked the court to find the Kentucky protocol unconstitutional if it imposed an “unnecessary risk” of error in light of potential alternatives. Chief Justice Roberts, applying the more rigorous standard he outlined, said that the risks identified by the inmates were not “so substantial or imminent as to amount to an Eighth Amendment violation.”

While most states use a method similar to Kentucky’s, a number of them have adopted additional safeguards to ensure that an inmate is properly anesthetized by the initial drug in the sequence, a barbiturate, before administration of the second two, which paralyze the muscles and stop the heart.

In fact, Justice Ruth Bader Ginsburg, in a dissenting opinion, listed several of these states and described the extra steps they have taken, to show that Kentucky could and should be required to do a better job. The states she named were Alabama, California, Florida, Indiana and Missouri. The other dissenter, Justice David H. Souter, signed her opinion.

The Indianapolis Star story today links to a "history on Indiana’s death row and background on the inmates housed there."

The Fort Wayne Journal Gazette carries the Washington Post's report, along with a side-bar quoting from Justice Ginsburg's dissent and quoting Indiana Deputy Attorney General Steve Creason: "Creason said he doesn’t expect an execution to take place in Indiana for at least a year. Sixteen people are on death row; the state is appealing court decisions setting aside the death penalties of four others."

Posted by Marcia Oddi on April 17, 2008 08:00 AM
Posted to Indiana Decisions