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 Americas & Beyond | April 2008 
Challenges Remain in US for Lethal Injection
 Adam Liptak - New York Times
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Executions in Texas, Alabama and other Southern states with large death rows are likely to resume shortly in the wake of the Supreme Court's decision Wednesday upholding Kentucky's method of putting condemned prisoners to death.
But the fractured decision may actually slow executions elsewhere, legal experts said, as lawyers for death row inmates undertake fresh challenges based on its newly announced legal standards.
"The decision will have the effect of widening the divide between executing states and symbolic states, states that have the death penalty on the books but rarely carry out executions," said Jordan M. Steiker, a law professor at the University of Texas.
George H. Kendall, a lawyer with Holland & Knight in New York who is an authority on capital litigation, said the effect of the Kentucky decision, Baze v. Rees, "is going to vary greatly."
"I bet you by this time next week there will be execution dates in Texas and Alabama," Mr. Kendall said. "But nothing is going to happen very quickly in California at all."
Supporters of the death penalty welcomed the decision, though they suggested that it could have been more definitive.
"It's true that they didn't completely slam the door and lock it," said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which advocates strong criminal penalties. "But I expect that the de facto moratorium will end this year, and in most states executions will resume."
Opponents of the death penalty said the decision was little more than a road map for more litigation. "I think it opens the door," said Elisabeth A. Semel, the director of the Death Penalty Clinic at the University of California, Berkeley.
Lawyers representing death row inmates said the plurality opinion presented them two challenges. One is to distinguish their state's procedures from that used in Kentucky. The other is to overcome the high evidentiary bar Chief Justice John G. Roberts Jr. set for all challenges to methods of execution.
In that plurality opinion, the chief justice said states with lethal injection protocols "substantially similar" to that used in Kentucky would be immune from challenges under the court's new standard, which requires death row inmates to prove not only a demonstrated risk of severe pain but also that the risk is substantial when compared with available alternatives.
"Substantially similar?" said Deborah W. Denno, a law professor at Fordham University whose work was cited by the court. "I'm not sure what that is or what that would constitute."
Thirty-five states and the federal government use lethal injections in executions, most if not all of them relying on a combination of three chemicals: a sedative, a paralyzing agent and a drug that stops the heart. If the chemicals are administered properly, all concerned agree, they produce a humane death. If the first is administered improperly, the second and third chemicals can give rise to suffocation and intense pain.
Relatively little is known about Kentucky's procedures for administering the chemicals, Professor Denno said, adding that other states had made public much more evidence concerning the risks involved.
Justices on the court's left and right wings said Chief Justice Roberts's opinion was an invitation to a fresh round of litigation.
"The question of 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," Justice John Paul Stevens wrote.
Justice Clarence Thomas said that "today's decision is sure to engender more litigation," because "we have left the states with nothing resembling a bright-line rule."
Professor Semel said the fractured decision, the relatively sparse information available about practices in Kentucky and the new standard announced by the court would produce fertile ground for additional litigation, particularly in states where flaws in the administration of lethal injections were documented.
"If it looks like California or it looks like Missouri or it looks like Tennessee," she said, "then it's not a substantially similar protocol to the one in Kentucky."
Indeed, Professor Denno said, "attorneys are in pretty good shape for further litigation." In particular, she said, they may be able to demand that state corrections departments provide them more information about execution procedures.
Justice Stevens urged states to consider abandoning one of the three chemicals, the paralyzing drug that would leave an unsedated inmate conscious but unable to move, breathe or cry out.
But no state has so far abandoned the three-chemical combination. And it is not clear whether Baze will make changes more or less likely.
"The court is giving different messages," Professor Denno said. On one hand, Chief Justice Roberts suggested that emulating the Kentucky protocol might provide states a safe harbor. On the other, Justice Stevens, though concurring in the court's judgment, said the paralyzing drug was a litigation magnet.
States that have considered moving to a simpler protocol may have been waiting, some legal experts said, until Baze was decided, so as not to prejudice Kentucky's chances before the court.
More than 40 stays have been issued in lethal-injection cases by various courts, 17 of them since the Supreme Court agreed in September to hear Baze, according to the Death Penalty Information Center. Those stays will presumably now be dissolved.
In addition, officials in at least four states - Virginia, Texas, Florida and Oklahoma - moved on Wednesday to begin setting new execution dates after the informal moratorium of the last seven months.
But the litigation will not stop, Professor Steiker said.
"We will end up largely where we were before Baze," he said. "It has set us on a course in which there will be continuing challenges, efforts to document botched executions and efforts to continue to explore alternative protocols." |
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