The Pew Charitable Trusts

The U.S. Supreme Court, hearing a case that already has halted executions nationwide, on Monday (Jan. 7) delved into the details of the three-chemical cocktail used to put prisoners to death in 36 of the 37 states that allow capital punishment.

During oral arguments in the case, Baze v. Rees , the justices heard sharply contrasting views on whether the lethal injection regimen used to execute inmates violates the U.S. Constitution's ban against cruel and unusual punishment.

Perhaps most strikingly, however, the high court discussed the possibility of not resolving the case at all and instead remanding it to a lower court to more closely study the common three-drug lethal injection protocol. Such a decision could extend a three-month-old moratorium on executions by lethal injection that went into effect when the justices agreed to hear the challenge now before them.

Lawyers for Ralph Baze and Thomas C. Bowling Jr., two Kentucky death-row inmates who brought the case, told the court that the combination of drugs used in Kentucky and other states could subject prisoners to excruciating pain and that simpler, painless methods of execution exist - notably, an overdose of a single barbiturate commonly used to euthanize animals.

The lawyers for the Kentucky prisoners did not argue for an end to all lethal injections, only modifications that could reduce the risk of inmates feeling "unnecessary pain."

But Justice Samuel Alito told the inmates' attorney, Donald B. Verrilli Jr., there was "virtually nothing in the record of this case that shows that (a single-drug execution) is practical or that it's preferable to the three-drug protocol. It may well be, but without anything in the record of this case, how could we hold that the three-drug protocol is unconstitutional?"

Justice David H. Souter also said the court was being asked to compare methods of lethal injection without enough information, and he raised the prospect of sending the case back to a trial court for a better comparison between procedures for animal euthanasia and capital punishment.

Justice Stephen G. Breyer seemed to seriously consider that possibility, asking, "Do we or do we not send it back?"

Baze v. Rees is the first time the Supreme Court has examined a method of execution since 1879, when the justices upheld Utah 's use of the firing squad. The Kentucky inmates' challenge is being watched closely by death-penalty supporters and opponents alike, particularly as states wrestle with questions over lethal injection specifically and the death penalty in general.

According to the inmates' lawyers, the current drug regimen - sodium thiopental (which causes unconsciousness), pancuronium bromide (which causes paralysis) and potassium chloride (which stops the heart) - masks pain felt by dying inmates. If the first drug doesn't work, they say, prisoners are unable to signal their distress because of the second, paralyzing drug.

New Jersey last month became the first state in more than 40 years to abolish capital punishment, and executions by lethal injection were on hold in at least 10 states even before the Supreme Court agreed to hear Baze v. Rees . Now that the justices have entered the debate, all lethal injections across the country have been put on hold in a de facto moratorium until the court reaches an opinion.

Justice Antonin Scalia - who has made clear he opposes the moratorium now in effect - said in court that he was "very reluctant to send (the case) back to the trial court so we can have a nationwide cessation of all executions while the trial court finishes its work."

After oral arguments, the attorney arguing the case for Kentucky, Roy Englert, told Stateline.org he would be "deeply disappointed" if the Supreme Court sent the case to a lower court for review.

But Verrilli, who argued the case on behalf of the Kentucky inmates, said that outcome would be "fine with us," underscoring the difficulty of the prisoners' appeal to usher in a new form of lethal injection in Kentucky and elsewhere.

The inmates who brought the challenge to Kentucky 's law both are double-murderers. In 1992, Baze fatally ambushed a sheriff and his deputy using an assault rifle outside his cabin in Powell County , Ky. Two years earlier, Bowling shot a couple to death in front of their 2-year-old son after crashing his car into theirs in a parking lot in Lexington .

While it counts among the most prominent cases now before the Supreme Court, Baze v. Rees is not the justices' only foray into questions over capital punishment this term.

On Friday (Jan. 4), the court agreed to consider the constitutionality of a Louisiana law that allows the death penalty to be applied to child rapists. The Supreme Court ruled in 1977 that criminals who rape adults may not be put to death, but it has not weighed the legality of executing those who violate - but don't kill - children under 13 years old.

In another Louisiana case being considered by the court, the justices last month heard arguments in a challenge from death-row inmate Allen Snyder, an African-American who alleges he received an unfair trial because the prosecutor in his case removed all blacks from the jury and made repeated public references to acquitted murder suspect O.J. Simpson before and during the trial.