Debate over execution devices mask motives

NY Times:

With conservative justices questioning their motives and liberal justices questioning their evidence, opponents of the American manner of capital punishment made little headway Monday in their effort to persuade the Supreme Court that the Constitution requires states to change the way they carry out executions by lethal injection.

Donald B. Verrilli Jr., the lawyer for two inmates on Kentucky’s death row who are facing execution by the commonly used three-chemical protocol, conceded that theoretically his clients would have no case if the first drug, a barbiturate used for anesthesia, could be guaranteed to work perfectly by inducing deep unconsciousness.

But as a practical matter, Mr. Verrilli went on to say, systemic flaws in Kentucky’s procedures mean that there can be no such guarantee, and the state’s refusal to take reasonable steps to avoid the foreseeable risk of “torturous, excruciating pain” makes its use of the three-drug procedure unconstitutional.

It was here that Mr. Verrilli met resistance from both sides of the court, and the closely watched case appeared to founder in this gap between theory and practice.

Of the 36 states with the death penalty, all but Nebraska, which still uses only the electric chair, specify the same three-drug sequence for lethal injections. The second drug, pancuronium bromide, paralyzes the muscles with suffocating effect. The third, potassium chloride, stops the heart and brings about death, but not before causing searing pain if the anesthesia does not work as intended. The paralyzing effect of the second drug gives the inmate a peaceful appearance and, even if he is in great pain because of inadequacy of the anesthesia, renders him unable to communicate that fact.

Mr. Verrilli said the risk of pain could be eliminated if medically trained personnel, rather than the prison warden, monitored the anesthesia. When Justice Antonin Scalia objected that the American Medical Association’s ethical code prohibited doctors from participating in executions, Mr. Verrilli replied, “That’s why there is another practical alternative here, which solves that problem.” The alternative, he said, is a “single dose of barbiturate, which does not require the participation of a medically trained professional.”

Chief Justice John G. Roberts Jr. asked what the court should do “if you prevail here, and the next case is brought by someone subject to the single-drug protocol, and their claim is, ‘Look, this has never been tried.’”

Further, the chief justice said, the inmate might object that death would take longer without the third drug, and would appear less “dignified” because of muscle contractions that are suppressed by the second drug.

“You have objections that would apply even to your single-drug protocol,” Chief Justice Roberts said.

While the chief justice’s skepticism was not unexpected, Justice Stephen G. Breyer’s response to Mr. Verrilli’s argument was a surprise. Justice Breyer told Mr. Verrilli he had read scientific articles supporting the one-drug protocol that were cited in the briefs filed by the inmates and had found them confusing.

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The fact of the matter is that the objections to the current method of execution is brought in bad faith and it is just part of the war of attrition of death penalty opponents. It is another excuse to add delay and expense to the process in the hopes that proponents will just give up. It is refreshing to see the justices were not buying their impotent cocktail of arguments.