Lethal injections ruled not cruel punishment
Bob Egelko, Chronicle Staff Writer

Wednesday, April 16, 2008


(04-16) 12:46 PDT WASHINGTON -- Executions in the United States, on
hold since September, could resume shortly with the Supreme Court's
ruling Wednesday that the combination of drugs used in most states'
death chambers does not create a substantial risk of severe pain and
therefore is constitutional.

But obstacles remain in California, where a federal judge's ruling
has forced the state to overhaul its lethal injection procedures and
build a new execution chamber and where another judge has told the
state to seek public input before changing its rules.

The Supreme Court ruled 7-2 in a case from Kentucky, which like
California uses an anesthetic to render an inmate unconscious,
followed by a paralyzing drug that halts breathing and by a third
chemical that stops the heart.

At least 30 of the 36 states that provide for lethal injection use
that combination. Condemned prisoners in virtually all those states
have contended in lawsuits that the process lacks safeguards to make
sure the anesthetic is effective, creating the risk that the inmate
will remain conscious and in agony while dying - and, because of the
paralyzing drug, will be unable to cry out.

Federal courts in several states, including California, have granted
stays of execution based on those arguments and on evidence of
unexpected problems in lethal injections. No one has been executed
since shortly after the Supreme Court agreed in September to hear the
Kentucky case.

Not cruel and unusual
On Wednesday, however, a majority of the court said the possibility
that the anesthetic could fail does not amount to cruel and unusual
punishment, even if other procedures exist that might reduce the risk
that an inmate will suffer pain.

States have sought "a progressively more humane manner of death"
since the 19th century, from hanging and firing squads to
electrocution, gas and now lethal injections, Chief Justice John
Roberts said in the lead opinion.

Courts cannot function as "boards of inquiry charged with
determining 'best practices' for executions" and should
avoid "scientific controversies beyond their expertise," Roberts
wrote. He said the courts would be justified in intervening only if
an inmate could show that a method of execution presents
a "substantial risk of severe pain," and that the state could easily
avoid that risk.

That test is more favorable to California than the standard U.S.
District Judge Jeremy Fogel of San Jose used in a December 2006
ruling that required the state to change the lethal injection
procedures it had used in 11 executions since 1996.

Two years and counting
California has the nation's largest Death Row, with 669 inmates. But
executions have been on hold since February 2006, when Fogel granted
a stay to Michael Morales, convicted of raping and fatally beating 17-
year-old Terri Winchell of Lodi in 1981. Prosecutors say four or five
other condemned prisoners have lost their appeals and are in line to
be executed after Morales.

In his December 2006 ruling, which followed testimony by medical
experts and execution witnesses, Fogel found evidence that prisoners
may have been conscious in as many as half the lethal injections at
San Quentin State Prison. He said the state's procedures were so
haphazard, with poorly trained staffers operating in a dimly lit
chamber, that they created an undue risk of a needlessly painful
execution.

Other courts and lawyers for condemned prisoners have followed that
legal standard - that an execution method is unconstitutional if it
would cause unnecessary pain - but the Supreme Court rejected it
Wednesday.

There's always some pain
Observing that "some risk of pain is inherent in any execution,"
Roberts said a state doesn't have to adopt any alternatives that
would diminish the likelihood of pain, only those that would
significantly reduce a substantial risk of severe pain and can be
readily implemented.

The Constitution bars only execution methods that are "objectively
intolerable," and procedures that states widely use will generally
pass that test, the chief justice said.

He rejected arguments by the Kentucky prisoners also advanced in the
California case - that the three-drug combination poses an
unconstitutional risk of pain because there is an alternative. That
alternative would be a single, massive dose of the sodium pentothal
anesthetic already used in lethal injections, which could kill a
prisoner painlessly but take longer than the current procedure.

The paralytic drug used in executions, pancuronium bromide, serves
only to mask the pain of a conscious prisoner and is barred in most
states in euthanasia on animals, the inmates' lawyers said.

But Roberts said states are not required to switch to untested
methods, such as one-drug executions. He said veterinary standards
are "not an appropriate guide to humane practices for humans."

What California is doing
In response to Fogel's 2006 ruling, California announced new lethal
injection procedures, changing the chemical dosages and taking steps
to monitor condemned prisoners more closely and improve the selection
and training of prison staff. The state is also building a new
execution chamber at San Quentin, which Fogel plans to inspect before
he reconsiders the case.

Gov. Arnold Schwarzenegger said the Supreme Court ruling supports the
revised execution procedures his office approved.

But Richard Steinken, a lawyer for Morales, said his case differs
from the Kentucky case because of the extensive record of problems
with executions in California.

He also cited a November ruling by a Marin County judge, who said the
state's revised execution procedures were invalid because prison
officials had not sought public comment. The state has appealed,
raising the prospect of additional delay.

By contrast, Virginia Gov. Timothy Kaine immediately lifted a
moratorium on executions Wednesday, the Associated Press reported.
Oklahoma's attorney general said he would request execution dates as
early as June for two inmates who have run out of appeals. Florida
Gov. Charlie Crist said he has asked a state lawyer to put together a
short list of death warrants.

Fractured court
Although the court reached a near-consensus in upholding Kentucky's
lethal injection procedures - with the two dissenters, Justices Ruth
Bader Ginsburg and David Souter, merely calling for additional lower-
court findings - the justices were unable to agree on a rationale.

Roberts' lead opinion was joined only by Justices Anthony Kennedy and
Samuel Alito. Two others in the majority, Justices Clarence Thomas
and Antonin Scalia, attacked Roberts' reasoning, saying it would lead
to endless litigation. They contended the drafters of the
Constitution meant to prohibit only execution methods that involved
the "intentional infliction of gratuitous pain," such as burning at
the stake.

Another member of the majority, Justice John Paul Stevens, agreed
with Roberts that Kentucky's procedures were valid under the court's
past rulings, but said he has concluded that the death penalty itself
is unconstitutional.

Stevens said evidence that some condemned inmates are innocent, that
jury selection and the application of the death penalty are tainted
by racial bias, and doubts that capital punishment deters crime have
convinced him that executions serve no societal purpose.

Scalia, in a separate opinion, called Stevens' position "astounding"
and said that once the people have determined that a constitutionally
permitted punishment is appropriate, "it is no business of unelected
judges to set that judgment aside."


Online resources
To read ruling: The full Supreme Court ruling in the case, Base vs.
Rees, 07-5439, can be found at links.sfgate.com/ZDBE.


E-mail Bob Egelko at begelko@sfchronicle.com.

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