Green light for restarting executions

By Elizabeth Schulte

AFTER A seven-month de facto moratorium on executions, death penalty opponents faced a setback April 16 when the U.S. Supreme Court ruled that the lethal injection method used to execute prisoners was constitutional.

The justices ruled 7-2 in the Kentucky case of Baze v. Rees that lethal injection didn't constitute cruel and unusual punishment, and therefore didn't violate the 8th amendment. Chief Justice John Roberts argued that states with protocols "substantially similar" to that used in Kentucky would be immune from further challenges.

But evidence abounds that lethal injection is not the "humane" procedure its supporters claim, and in many cases has been more like torture. Thirty-five states and the federal government execute people using lethal injection, most of them using a combination of three chemicals--a sedative, a paralyzing agent and a drug that stops the prisoner's heart.

According to a 2005 Lancet medical journal report, 43 of the 49 executed prisoners they studied, the anesthetic administered during lethal injection was lower than required for surgery. In other words, the paralyzing agent's purpose is little more than a mask for unbearable pain.

After the announcement of the court's decision, at least four states--Virginia, Texas, Florida and Oklahoma--began scheduling executions.

More legal challenges will certainly follow in other states that use lethal injection. "The court's ruling today approves Kentucky's lethal injection procedures based upon the evidence presented, but calls into serious question the procedures in a number of other states," said Elisabeth Semel, director of the death penalty clinic at the University of California-Berkeley's law school. "Things are still very much in flux."

Still, the ruling is a setback in that it lifts the unofficial moratorium on executions. "This is a serious blow to death penalty opponents who hoped that disabling the death machinery would lead to abolishing it," wrote journalist and anti-death penalty activist Liliana Segura on AlterNet. "It is also, in many ways, the result of a frustrating failure of legal strategy. The attorneys who argued Baze did so on very narrow grounds, contending that Kentucky's lethal injection protocol is broken, but not beyond repair."

In addition, while the justices voted resoundingly to preserve lethal injection, they issued separate opinions--illustrating that the debate over the death penalty is far from resolved.

Judge John Paul Stevens, a key vote on the court when the death penalty was reinstated in 1976 after a four-year halt in executions, wrote in his opinion, "The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived."

Stevens said in a statement, "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," Stevens said in his statement.

As the Campaign to End the Death Penalty's Marlene Martin said, "The Supreme Court has declared today that torturing someone to death is not cruel and unusual punishment. But no matter how you mix the chemicals, the death penalty is still cruel. The death penalty is wrong, and there's just no right way to do the wrong thing."