A False Consensus on Lethal Injection

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The gurney in the execution chamber at the Oklahoma State Penitentiary.

The Supreme Court reopened the nation's execution chambers on Wednesday, rejecting a claim by Kentucky inmates — echoed by prisoners across the country — that lethal injection as it is widely practiced is cruel and unusual punishment.

This result came as no surprise to experts on the death penalty. Neither the case law nor the composition of the Supreme Court gave the inmates much hope. The surprise had come last fall, when the Court effectively halted all executions while it pondered the issue.

What was striking about the case, Baze v. Rees, was that after 36 years of extensive litigation over capital punishment, the Court is as scattered as ever. A case in which none of the justices ultimately found much merit nevertheless provoked seven separate opinions, controlled by a weak three-judge plurality.

"If it takes them seven separate opinions, controlled by a 3-vote plurality, totalling 97 pages, just to dispose of a case in which they basically all suggest that there's no there there, it doesn't bode well for them tidying up this area of the law," says Mark Olive, a veteran anti-death penalty attorney.

Like most states, Kentucky uses a three-drug combination to execute condemned prisoners. The first drug is supposed to render the inmate unconscious, the second paralyzes the lungs and the third stops the heart. If the first drug isn't administered properly and the inmate was left awake, the second and third drugs will produce an agonizing death. The question before the Court was: How far must a state go to minimize that risk?

Chief Justice John Roberts observed in his opinion that "some risk of pain is inherent in any method of execution," and held that the Constitution condemns only "substantial" or "objectively intolerable" risks. Six other justices shared the chief's conclusion that Kentucky's approach passed muster, but only two of them — Anthony Kennedy and Samuel Alito — were willing to sign the chief's blueprint for deciding how much risk is too much, which included the vague standard that challengers must show that there were alternatives that were "feasible" and "readily implemented" that would "significantly" reduce a risk of severe pain.

Still, the two colleagues Roberts drew to his opinion were more than any of the other justices could do. Justice Clarence Thomas held, alone, that the Constitution forbids only those execution methods that are expressly intended to inflict severe pain. For example: "'gibbeting,' or hanging the condemned in an iron cage so that his body would decompose in public view, and 'public dissection'...[and] embowelling alive, beheading, and quartering." Also beyond the pale, he noted, would be burning prisoners alive.

Justice Antonin Scalia's solo opinion insisted that courts should not decide these issues; legislatures should. Justice John Paul Stevens, while agreeing that the case at hand was lame — since lethal injection is entirely designed NOT to be cruel and there is skimpy evidence that this theoretically possible kind of agonizing execution has ever actually happened — urged precisely the opposite. He would like for the Supreme Court to reconsider the entire death penalty and find the whole thing cruel and unusual. Like former justices Harry Blackmun, Lewis Powell and Sandra Day O'Connor before him, Stevens has concluded as he nears the end of his career that America's modern death penalty is too complicated and too tangled ever to work efficiently or fairly. "The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived," the Court's senior justice wrote.

Even the two dissenters, Justices Ruth Bader Ginsburg and David Souter, weren't much comfort to the inmates. Their opinion would have sent the case back to the Kentucky courts to decide whether the execution team should use some test — like checking the condemned prisoner's reflexes by brushing his eyelashes — to determine whether he's unconscious before administering the second drug.

Michael Mello, a professor at Vermont Law School who has written extensively on the death penalty, chose an apt verb when he was reached for comment on the decision. "I'm still excavating the opinions," he said by e-mail. It was quite a pile to wade through. "But I think it's as confusing as the road map required through Furman," Mello continued, referring to the 1972 case — nine separate opinions making up the longest text in Court history — that began America's frustrating attempt to create a consistent, rational death penalty. When it comes to the death penalty, confusion is the only constant.