WASHINGTON The Supreme Court announced Sept. 25 it will hear an appeal concerning the constitutionality of lethal injections, specifically the three-drug concoction used in 36 states to put inmates to death.
A Kentucky case will be used to issue a ruling by next summer on whether the current protocol can be deemed "cruel and unusual punishment," violating the Eighth Amendment. Ralph Baze and Thomas Bowling, two death row inmates, have filed the appeal, claiming the concoction could cause "unnecessary pain."
Both men were convicted of double homicides and given the death penalty in Kentucky. Baze killed a Powell County deputy and sheriff, while Bowling murdered a couple with a young son.
According to Baze and Bowling's attorneys, at least half of those sentenced to lethal injection and facing imminent execution in the last two years have challenged the use of the tri-chemical cocktail. Sodium thiopental, pancuronium bromide and potassium chloride are used together to render the inmate unconscious, interrupt the breathing process and, finally, stop the heart.
The central issue is whether the possibility of unnecessary pain calls for the use of other drugs in the process. "All of the current lethal injection chemicals could be replaced with other chemicals that would pose less risk of pain," states the petition filed by Baze and Bowling's attorneys.
Barrett Duke of the Southern Baptist Ethics & Religious Liberty Commission (ERLC) said, "Merely the risk of suffering is inadequate to require the use of another means of execution, but I don't think we should inflict pain unnecessarily."
The convicts' petition claims sodium thiopental, used as an anesthetic, "begins to wear off almost immediately," allowing the condemned to feel pain. Pancuronium bromide is a paralytic that would prevent any "outward signs of pain or consciousness." Potassium chloride, the drug used to stop the heart, is described as "road salt used to melt ice."
The Kentucky court rejected these claims, and the respondents to the petition maintain "the risk of any condemned inmate being conscious during an execution [is] extremely remote."
Duke said, "I have always assumed that the states have no desire to create a situation where someone would undergo unnecessary pain from lethal injection. Surely there is a chemical which, administered in a large enough dosage, will stop the heart without a possibility for the person to experience pain."
Another question to be resolved is whether states should be required to provide measures to revive an inmate in the event that a stay of execution is issued after the drugs have already been administered.
"States should make every effort to be able to halt an execution before it is completed, but once the final drug is administered, I think the state should consider that its obligation to [resuscitate] no longer exists," said Duke, the ERLC's vice president for public policy and research.
Although a "crash cart" equipped with a defibrillator, medication and other supplies used in the resuscitation process and a doctor are now available during executions in Kentucky, the inmates' petition describes these as insufficient for sustaining life after the injection of the three-drug concoction.
Until a decision is reached by the Supreme Court, scheduled executions in other states by lethal injection could be postponed, although Texas executed an inmate by lethal injection hours after the high court agreed to hear the case.
A date has not been set for oral arguments before the justices, but the case has been earmarked for the January sitting.