Supremes to Weigh In on Lethal Injection

Does current lethal injection method of 37 states subject prisoners to cruel and unusual punishment?

The U.S. Supreme Court ordered on Sept. 27 a last-minute stay of execution for condemned Texas killer Carlton Turner Jr., pending the outcome of a case the court will hear in its fall term that challenges lethal injection as an unconstitutionally cruel form of punishment. Turner, sentenced to die for the 1998 murder of his parents at their home outside Dallas, was slated to become the 27th inmate executed by the state this year. The high court did not explain its decision, but it is almost certainly tied to an appeal from Kentucky that the court has accepted to hear in its next term, which starts this week.

At issue in the Kentucky case – filed by condemned inmates Ralph Baze and Thomas Bowling (in a case styled Baze v. Rees) – is whether the current "tri-chemical cocktail" lethal injection method used by 37 states actually subjects the condemned to an "unnecessary risk" of suffering that violates the Eighth Amendment ban on cruel and unusual punishment. The cocktail is made up of three separate drugs – the first is meant to sedate the prisoner and paralyze the body before the drugs that incapacitate internal organs and stop the heart are administered. The problem is that if the sedation doesn't work, an inmate would remain awake but paralyzed and thus subject to "excruciating pain and torture" associated with the lethal drugs, reads the Baze appeal. "The inmate will be forced into a chemical straitjacket, unable to express the fact of his suffocation."

The Supremes have said inmates may challenge the manner in which they are to be executed, but the court has not reviewed any such appeal in more than 100 years, when it upheld the constitutionality of Utah's use of a firing squad. Thus, Baze's attorneys argue, lower courts have been left to navigate inmate challenges on their own, creating a "haphazard flux" of legal standards with which to evaluate whether the method of execution is in fact constitutional. (The Baze case was reviewed and cleared by the Kentucky courts, the lawyers note, even though scientific testimony demonstrated that there are other readily available chemicals that would pose less risk of pain for the inmate – meaning, they argue, that suffering linked to the current method is actually unnecessary.)

Lawyers for Texas inmate Michael Rich­ard reportedly scrambled to earn a stay for their client in the hours just after the Supremes announced it would take the Baze case last week, but his last-minute appeal to the high court was rejected, leaving Richards to become the 26th Texas inmate to face lethal injection in 2006. So far, 11 states have put a hold on executions until the Baze case is resolved. Whether Texas will follow suit remains to be seen.

*Oops! The following correction ran in the October 12, 2007 issue: In last week's "Supremes to Weigh In on Lethal Injection," we misidentified executed inmate Michael Richard as Michael Richards. We regret the error.

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lethal injection, U.S. Supreme Court, Carlton Turner, Jr., Michael Richards, Baze v. Rees, death penalty

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