Supreme Court Upholds Lethal Injection
By Eric Kelderman, Staff Writer; John Gramlich, Staff Writer
(Updated 12 p.m. EST, April 17, 2008)
The U.S. Supreme Court has given states the green light to resume executions by lethal injection after a nearly seven-month, nationwide moratorium triggered by an appeal from a pair of death-row inmates in Kentucky.
Hours after the justices' April 16 ruling rejecting the two prisoners' challenge - which claimed that the three-drug combination used to execute inmates in most death chambers across the country is unconstitutional - Kentucky and at least 10 other states (Alabama, Arizona, Florida, Georgia, Mississippi, Missouri, Oklahoma, Tennessee, Texas and Virginia) said they would pursue executions.
But there was no immediate sign which state would be the first to carry out a lethal injection this year. At least 18 death-row inmates across the country won temporary reprieves while the high court weighed the Kentucky prisoners' challenge, and they could face execution soon. At the same time, at least seven other states (Arkansas, California, Delaware, Montana, North Carolina, Nevada and Ohio) said it was too early to tell what the court's decision means, according to media reports.
The high court's 7-2 decision in the case, Baze v. Rees, was announced from the bench by Chief Justice John G. Roberts Jr. Despite the lopsided final count, no majority opinion was reached; instead, seven separate justices wrote their own opinions, reflecting deep uncertainty and calling into question whether the decision will be viewed by lower courts as a true standard.
|The Death Penalty Since 1972|
Furman v. Georgia : The U.S. Supreme Court effectively voids 40 state death penalty statutes and suspends capital punishment, ruling that death sentences are handed down arbitrarily, violating the Eighth Amendment prohibition against "cruel and unusual punishment."
Gregg v. Georgia : The U.S. Supreme Court allows states to rewrite their death penalty statutes. Florida reinstates the death penalty within five months, followed shortly by 34 other states. Kansas and New York reinstate the death penalty in 1994 and 1995, respectively.
Gary Gilmore is executed by firing squad in Utah on Jan.17. He becomes the first person executed since the death penalty is reinstated.
Oklahoma becomes the first state to adopt lethal injection as a means of execution after its state medical examiner, Jay Chapman, proposes the method.
Coker v. Georgia : The U.S. Supreme Court prohibits executions for rape when the victim is not killed.
Texas becomes the first state to use the lethal-injection method when it executes Charles Brooks Jr. on Dec. 7.
North Carolina killer Velma Barfield on Nov. 2 becomes the first woman to be executed since the death penalty was reinstated.
Ford v. Wainwright : The U.S. Supreme Court rules that executing the mentally insane is unconstitutional.
Thompson v. Oklahoma : The U.S. Supreme Court rules that executing prisoners who were 15 or younger at the time of their crimes is unconstitutional.
Stanford v. Kentucky and Wilkins v. Missouri : The U.S. Supreme Court rules that the death penalty is not prohibited under the Eighth Amendment for those who committed their crimes at ages 16 or 17.
Penry v. Lynaugh : The U.S. Supreme Court rules that executing the mentally retarded does not violate the Eighth Amendment.
Maryland prisoner Kirk Bloodsworth becomes the first death-row inmate to be freed because of DNA evidence.
President Clinton signs the Violent Crime Control and Law Enforcement Act, expanding the federal death penalty to 60 crimes.
After the deadly bombing of a federal building in Oklahoma City , Okla. , President Clinton signs the Anti-Terrorism and Effective Death Penalty Act, which restricts review of death-penalty cases in federal courts.
Pope John Paul II in January visits St. Louis, Mo. , and calls for an end to capital punishment in the United States. He privately urges then-Missouri Gov. Carnahan (D) to commute the death sentence of convicted killer Darrell Mease, scheduled to be executed during the Pope's visit. Carnahan commutes Mease's sentence to life without parole.
Illinois Gov. George Ryan (R) orders a moratorium on executions and appoints a commission to study flaws in the state's death penalty system.
Oklahoma City bomber Timothy McVeigh on June 11 becomes the first federal prisoner to be executed in 38 years.
Ring v. Arizona : The U.S. Supreme Court rules that juries, not judges, should decide sentences of death.
Illinois Gov. Ryan commutes the death sentences of all 167 inmates on the state's death row before leaving office in January.
New York 's death penalty statute is declared unconstitutional by the state's highest court in June. The Kansas Supreme Court voids its death penalty law in December.
Roper v. Simmons : The U.S. Supreme Court reverses its 1989 decision in Stanford v. Kentucky and Wilkins v. Missouri and rules that executing juvenile offenders who were under 18 at the time of their crimes is unconstitutional.
Kansas v. Marsh : The U.S. Supreme Court reinstates Kansas' 1994 death penalty law, upholding the state's practice during the sentencing phase of imposing the death penalty in cases where the jury is tied between life imprisonment and death.
Hill v. McDonough : The U.S. Supreme Court rules that a death-row inmate in Florida may file a last-minute challenge to the state's lethal-injection procedures even though he exhausted his regular appeals.
Challenges to lethal injection put executions on hold in nine states: Arkansas , California , Delaware , Florida , Kentucky , Louisiana , Maryland , Missouri and South Dakota . In Florida , Gov. Jeb Bush (R) suspends all executions after the lethal injection of convicted murderer Angel Diaz takes 34 minutes, twice the normal time.
Sept. 25, 2007: The U.S. Supreme Court agrees to hear Baze v. Rees , an appeal by two Kentucky death-row inmates who argue that the chemical cocktail used to execute prisoners in 36 states is cruel and unusual. Hours later, Texas inmate Michael Richard is put to death using the same lethal-injection method challenged in the Kentucky case.
Sept. 27, 2007: The U.S. Supreme Court stops the lethal injection of another Texas inmate, Carlton Turner, the first of several delays granted to death-row inmates and the beginning a de facto nationwide moratorium on executions until Baze v. Rees is decided.
April 1, 2008 :Virginia Gov. Timothy M. Kaine (D) halts all executions in the state until the U.S. Supreme Court rules in Baze v. Rees .
April 16, 2008 : In a 7-2 decision in Baze v. Rees , the U.S. Supreme Court upholds the three-drug lethal-injection protocol used to execute prisoners in most states.
April 16, 2008 : Hearing arguments in Kennedy v. Louisiana , the U.S. Supreme Court considers whether the death penalty may be imposed on those convicted of raping a child.
|Source: Stateline.org reporting|
Roberts, writing a lead opinion that was joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr., rejected the basis of the inmates' challenge. Just because there may be a safer alternative to Kentucky's protocol doesn't mean that the current regimen is unconstitutional, the chief justice said. The inmates' lawyers had argued in January that a single drug could be administered to the condemned, similar to the process used to euthanize animals, to reduce the risk of agonizing pain.
"This court has ruled that capital punishment is constitutional, and so there must be a means to implement it," Roberts said in court.
Under the standard adopted in the Roberts opinion, a successful challenge to lethal injection would have to show there is a "substantial risk of serious harm" and that a readily available and easy-to-implement alternative to the three-drug combination exists.
All eyes now turn to the states, which schedule and carry out the vast majority of executions in the United States, where 929 prisoners have died by lethal injection since capital punishment was reinstated by the Supreme Court in 1976.
Advocates and scholars on both sides of the death-penalty debate acknowledged that lethal injections will resume soon, especially in states that execute prisoners regularly and where death row has become more crowded during the past seven months. As a result of the lethal-injection moratorium caused by the Kentucky prisoners' challenge, only 42 inmates were executed nationwide last year, the fewest since 1994, according to the Death Penalty Information Center , which opposes capital punishment.
In Kentucky, Attorney General Jack Conway (D) indicated that new death sentences would be set in the state.
"My office will review the status of all death row appeals in the Commonwealth and will take appropriate steps to see that these cases move through the court system toward their conclusion," he said in a statement.
In Florida, Republican Attorney General Bill McCollum's office immediately filed a motion with the U.S. Supreme Court to allow a new execution date for convicted killer Mark Dean Schwab, who had appealed to the court to be spared pending its ruling in the Kentucky case. Schwab won a stay from the justices last November.
Virginia Gov. Timothy M. Kaine (D), who this month announced a moratorium on executions until the high court issued its opinion, released a statement saying that "executions will move forward according to the procedures that were in place prior to the Court's agreement to hear Baze last September."
Alabama, Arizona, Georgia, Mississippi, Missouri, Oklahoma, Tennessee and Texas also said they would set new execution dates, according to news accounts.
In Texas, which executes far more inmates than any other state, it is uncertain who will become the first to die by lethal injection. Execution dates are set by individual trial judges and a series of court-ordered stays of execution first must be reversed, said David Dow, an attorney with the nonprofit Texas Defender Service, which defends death-row inmates.
In Nebraska, meanwhile, Gov. Dave Heineman (R) said in a conference call with reporters that the high court's decision will provide a "road map" for the state to carry out the death penalty, which could make it the 36 th to allow lethal injection. In February, the state Supreme Court ruled that Nebraska's sole method of execution - electrocution - was unconstitutional, leaving no legal alternative.
Heineman has asked state Attorney General Jon Bruning (R) to conduct a thorough review of the Supreme Court's new ruling to decide whether the state should appeal to federal courts to reinstate electrocution, try to convince the Legislature to legalize lethal injection, or do both.
Douglas Berman, an Ohio State University law professor who has closely followed the challenge to lethal injection, said in an online posting that the court's decision is varied enough - because of its one lead opinion, five concurring opinions and one dissenting opinion - to include "something for everyone" and that interpretations could differ from jurisdiction to jurisdiction.
"Those local officials eager to get executions going again will have new wind behind the sails of an argument that standard lethal injection protocols are constitutionally sound," Berman wrote on his blog, Sentencing Law and Policy . "Those local officials content with the de facto moratorium status quo can use various parts of Baze to justify claims that everyone should go slow as officials re-examine execution protocols in light of the Supreme Court's new guidance in Baze ."
Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation , acknowledged that the court's decision "is not as clear as we might have liked, but it's clear enough. I expect the moratorium to be lifted soon in most of the country."
Death-penalty opponents, meanwhile, said the court's decision left enough of a window for litigation against lethal injection to continue.
"A plurality of the court has set a standard, and litigation challenging lethal injection will go forward under the standard that the court has adopted," said Elisabeth Semel, director of the Death Penalty Clinic at the University of California-Berkeley.
The court's decision on lethal injection is not its only foray into capital punishment this term. Also on Wednesday, the justices heard arguments in a case from Louisiana that tests whether a state may impose the death penalty for the non-capital crime of child rape.
While the Supreme Court ruled in 1977 that execution is an unconstitutional punishment for the crime of raping an adult, it left open the question of whether that penalty is fit for those who rape children. Louisiana and six other states - Florida, Georgia, Montana, Oklahoma, South Carolina and Texas - have statutes allowing child rapists to be executed. Lawmakers in other states recently have pushed for similar laws.
A decision in that case, Kennedy v. Louisiana , is expected by summer.