WASHINGTON The U.S. Supreme Court in a 7-2 ruling April 16 upheld Kentucky's method of lethal injection, giving states nationwide the green light to lift their unofficial moratoriums on such death penalty methods.
In addition to Kentucky, 36 states use legal injection, including at least 30 who use the same three-drug combination that Kentucky employs. Kentucky and those other states use sodium pentothal, pancuronium bromide and potassium chloride to render the inmate unconscious, cause paralysis and stop the heart, respectively. The federal government also uses lethal injection for federal death penalty cases.
States had put a moratorium on lethal injection and postponed some executions, waiting for the court's ruling. The lawsuit was brought by two Kentucky death row inmates who challenged the state's method of lethal injection as "cruel and unusual punishment," thereby violating the Constitution's Eighth Amendment.
The inmates and their attorneys were not asking that lethal injection be banned, only that a different method be used. They insisted that Kentucky's method posed an unnecessary risk of pain, particularly if the dose of sodium pentothal, given at the outset and intended to cause unconsciousness, was improperly administered.
The court, though, disagreed, upholding a ruling by the Kentucky Supreme Court.
"Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual," Chief Justice John Roberts wrote.
Justices Anthony Kennedy and Samuel Alito joined Roberts' opinion, while four other justices -- Clarence Thomas, Antonin Scalia, John Paul Stevens and Stephen Breyer -- issued separate concurring opinions agreeing with the judgment. Justice Ruth Bader Ginsburg issued a dissent, in which Justice David Souter joined.
Permitting the inmates to win the case, Roberts said, would "threaten to transform courts into boards of inquiry charged with determining 'best practices' for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology."
For a death penalty method to be considered unconstitutional, Roberts said, it must be proven that it poses a "substantial risk of serious harm" or an "objectively intolerable risk of harm."
Stevens' concurring opinion was significant because he acknowledged he believes the death penalty is unconstitutional; he said, though, that he was respecting Supreme Court precedent. Stevens nonetheless was critical of the Roberts opinion.
"Instead of ending the controversy," Stevens wrote, "I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself."
Thomas and Scalia also were critical of the Roberts decision, saying in an opinion authored by Thomas that "a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain."
"This standard [in the Roberts opinion] ... finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve," Thomas wrote.
The Southern Baptist Convention approved a resolution at its annual meeting in 2000 supporting the "fair and equitable use of capital punishment by civil magistrates as a legitimate form of punishment for those guilty of murder or treasonous acts that result in death." In support of its position, the resolution cited God's authorization in Genesis 9 of capital punishment for murder and Romans 13's approval of the death penalty as "a just and appropriate means" to be used by government authorities.
The resolution called for capital punishment to be used only where there is "clear and overwhelming evidence of guilt" and "as justly and as fairly as possible without undue delay, without reference to race, class or status of the guilty." It also urged the government to utilize "humane means."
"In that resolution, the messengers made it clear that they believe the Bible teaches that God has given the civil authorities the power to use capital punishment," Barrett Duke, vice president of public policy for the Southern Baptist Ethics & Religious Liberty Commission, previously told Baptist Press. "We are also keenly aware of the potential for irregularities and inconsistency in its application. As a result, we call for clear and overwhelming evidence of guilt and also equity in its application.
"Capital punishment is a very serious matter," Duke said. "The civil authorities must do all they can to assure appropriate legal protections for those who face it. They must also make sure that even as they exact the ultimate penalty, they do so in a manner that is respectful of the life they are taking. Everyone is created in God's image. That image deserves all the respect we can give it, even in capital punishment."
The case before the Supreme Court was Baze v. Rees.