Supreme Court to decide on lethal injection

By: Liliana Segura

On January 7, the U.S. Supreme Court heard oral arguments in the case of Baze v. Reese, ostensibly to decide whether the death penalty as carried out in 36 out of 37 states in this country is unconstitutional. 

For anyone paying attention to the growing controversy over lethal injection these past couple years, it was a defining moment in death penalty litigation, the first time the Court has considered a specific method of execution since it upheld the firing squad in 1878--and a sign that the U.S. courts are now under pressure to address the obvious failings of the death penalty system. 

For opponents of state-sanctioned killing, however, it would be a disheartening day in court. Absent from the discussion were any of the other flaws that anti-death penalty activists have exposed about the system--from the fact that the vast majority of people being “lethally injected” are poor and disproportionately African American or Latino, to the long record of police abuses and prosecutorial misconduct that has led to innocent people being sent to death row.

The reality was brought home that it will take more work on the abolitionist front to push the court towards stopping the death penalty altogether--like it did in 1972.

In many ways, Baze v. Rees marked the culmination of two years’ worth of legal upheaval over the death penalty. Ever since the Supreme Court intervened in the case of Florida death row prisoner Clarence Hill in January 2006, the stage has been set for a debate on lethal injection at the highest levels of the judiciary. 

Five months after the Court’s last-second halting of Hill’s execution--he was strapped onto a gurney with intravenous lines in his arms--it opened the door for prisoners to appeal their death sentences based on the possibility that lethal injection is cruel and unusual. 

As different states reacted in different ways, with some putting executions on hold and others carrying them out as usual, it was only a matter of time until one among the scores of subsequent appeals would make it to Washington. 

Even anti-death penalty activists who place little faith in the courts recognized the importance of the justices’ decision on September 25, 2007 to hear Baze. The country’s last execution to date was carried out that night--at the behest of a Texas judge who didn’t see why a little Supreme Court decision should keep her at work past 5 p.m. But the months that followed saw executions stalled across the country. 

Unfortunately, attorneys arguing on behalf of Kentucky death row prisoners Ralph Baze and Thomas Bowling brought their case forth on the narrowest possible terms, contending that Kentucky’s lethal injection protocol, which is virtually identical to that of all other death penalty states, is broken--but not beyond repair. 

Addressing the danger that prisoners facing lethal injection could die an excruciating death, attorney Donald Verrilli accepted that there might actually be a humane way to execute a human being. “If there were a way to guarantee that the procedure worked every time, then we wouldn’t have substantial risk” of pain, he told the judges--putting himself in the perverse position of arguing, not against lethal injection, but in favor of a kinder, gentler version of it. 

Lethal injection in the United States takes the form of a “three-drug cocktail.” The first drug is the barbiturate sodium thiopental; the second is a paralytic called pancuronium bromide; and the third is potassium chloride, which stops the heart. In theory, if the drugs are properly administered, the prisoner will be killed quickly and painlessly. 

The problem, as has been gruesomely demonstrated from California to Ohio to Florida, is that executioners, who have little to no medical training, can easily misadminister the first drug. The result: a paralyzed prisoner silently suffers while he or she is tortured to death. 

Defenders of lethal injection argue that this could be easily fixed by getting rid of the paralytic. After all, it serves no purpose besides masking the effects of the lethal chemicals on a prisoner’s body. Indeed, veterinarians have been euthenizing animals for years using a single massive dose of barbiturate. 

But supporters of the three-chemical method are reluctant to let it go. The paralyzing agent, they argue, is not only important for the sake of the witnesses--because no one watching an execution should have to squirm too much in their seats--but for the sake of the prisoner. “The purpose it serves,” said Roy Englert, representing Kentucky before the Court, “is the purpose of dignifying the process for the benefit of the inmate and for the benefit of the witnesses.” 

If the “anti-death penalty” side chose strategy over truth that day, the rhetoric deployed by the killers in the courtroom--feigning respect for the humanity of people they want to see dead--was as ironic as it was disingenuous. 

In the end, the difference between the two sides arguing before the court boiled down to this: the killers wanted the murderous cocktail to remain as is on the death menu, while the “good guys” wanted a change in recipe--or at least better cooks. “One needs a person trained in monitoring anesthetic death to participate in the process,” Verrilli piped up at one point. 

With both sides in Baze v. Rees trying to “dignify the process” of state-sanctioned murder, the fundamental lie that remains at its root--that such a punishment can ever be anything other than cruel and unusual--was again left unchallenged. 

The Supreme Court is scheduled to make a decision this spring. With the chances of the current justices abolishing lethal injection slim to none, the best scenario that abolitionists could expect is that the Court will send the case back to Kentucky’s lower courts, which would likely leave executions off the table nationwide for months to come. 

But if the death penalty defenders on the bench prevail, and lethal injection is upheld, executions will resume without further delay. Such prospects serve as a stark reminder of the need for grassroots activism aimed at total abolition.