While conceding that the chemicals used to execute death row inmates in Kentucky might cause needless pain, the state's Supreme Court ruled Wednesday that using them did not violate the Constitution's prohibition on cruel and unusual punishment.
"Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain," Justice Donald C. Wintersheimer wrote for the unanimous court. "The prohibition is against cruel and unusual punishment and does not require a complete absence of pain."
The lawyers for the two inmates who brought the challenge, like lawyers in scores of other cases around the country, had presented evidence that the three chemicals used in lethal injections had the potential to produce excruciating pain.
Thirty-seven states and the federal government execute condemned prisoners by injection. A federal judge in California will decide a challenge to that state's lethal injection protocol, and Deborah W. Denno, a Fordham law professor and expert on execution methods, said similar litigation was pending in nearly all those states.
Most states' protocols call for a series of three chemicals. The first is a barbiturate meant to render the inmate unconscious. The second is a paralyzing agent that makes the inmate unable to speak, move or breathe. The third is potassium chloride, which stops the heart.
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Veterinarians, by contrast, use a single large dose of barbiturate to euthanize animals.
Lawyers for the Kentucky inmates, Ralph Baze and Thomas C. Bowling, relied on interpretation of autopsy records from the last execution in the state, that of Edward L. Harper in 1999. The lawyers said the drug meant to make Harper unconscious had not worked, meaning the two other drugs had subjected him first to smothering and then to searing pain while he was awake but unable to cry out.
"Harper went to sleep within 15 seconds to one minute from the moment that the warden began the execution," Wintersheimer wrote, "and never moved or exhibited any pain whatsoever subsequent to losing consciousness."
Denno said the court's opinion was flawed. She said it did cite the correct constitutional standard, which bars punishments that create a substantial risk of wanton and unnecessary infliction of pain. But because the decision, in an apparent allusion to veterinary euthanasia, acknowledged that "there are other drugs which may further assure the condemned person feels no pain," the court's own reasoning should have required a contrary ruling, she said.
