JIM LEHRER: And, finally tonight, lethal injection before the U.S. Supreme Court. Jeffrey Brown has our story.
JEFFREY BROWN: Is the most often used method to execute prisoners in death penalty cases constitutional?
For several months, executions nationwide have been on hold, pending a Supreme Court decision on that question. It’s the first time since 1878 that the court will rule on whether a specific type of execution violates the Eighth Amendment’s ban on cruel and unusual punishment.
The arguments were heard today. NewsHour regular Marcia Coyle of the National Law Journal was there, and she joins us now.
MARCIA COYLE, National Law Journal: Thank you, Jeff.
Challenging the drug protocol
JEFFREY BROWN: What makes this case so important that all these executions have basically been put on hold?
MARCIA COYLE: Well, Jeff, the Kentucky death row inmates who are challenging lethal injection in the Supreme Court are not asking the court whether lethal injection, now and forever, is constitutional or unconstitutional.
This is an attack on a specific three-drug protocol used in lethal injection. There are 36 states today that have capital punishment; 35 of those 36 use lethal injection and a drug protocol that is either identical or very similar to the Kentucky protocol being challenged.
JEFFREY BROWN: We have a graphic that shows the three drugs. So just walk us through what it entails.
MARCIA COYLE: All right. The first drug is basically a barbiturate. It acts as an anesthetic. It brings on unconsciousness. The second drug paralyzes muscle movement. And the third drug induces cardiac arrest and death.
JEFFREY BROWN: All right. So just to be clear what this isn't, this is not a challenge to the death penalty...
MARCIA COYLE: No.
JEFFREY BROWN: ... not a challenge to lethal injection, but to a specific type?
MARCIA COYLE: Right, but since it's so prevalent among the states, what the court says about this type will have an impact on what the states can do going forward.
JEFFREY BROWN: All right. In today's hearing, the lawyer for the inmates, Donald Verrilli, went first. What was his basic argument?
MARCIA COYLE: He had basically two points to make to the court. First, he said that an execution method that creates an unnecessary risk of severe pain -- and that risk that can be avoided by reasonable alternatives -- violates the Eighth Amendment, which you know bans cruel and unusual punishment.
He also made a second point specifically to Kentucky. He said Kentucky's three-drug protocol creates that unnecessary risk of severe pain by using untrained personnel and inadequate monitoring of the lethal injection procedure.
JEFFREY BROWN: He ran into some stiff opposition, especially from Justice Antonin Scalia.
MARCIA COYLE: Yes, he did.
JEFFREY BROWN: We have a clip of a little bit of that exchange. Let's listen to it, starting with Justice Scalia's voice.
MARCIA COYLE: OK.
JUSTICE ANTHONY SCALIA, U.S. Supreme Court: Where does this come from that, in the execution of a person who has been convicted of killing people, we must choose the least painful method possible? Is that somewhere in our Constitution?
DONALD VERRILLI, Lawyer for Inmates: We don't make the argument that states are required to choose the least painful method possible. The core concern of the Eighth Amendment at the time of its founding, of course, was precisely the question of whether the carrying out of death sentences would inflict tortuous death. So we're at the core of the historic...
JUSTICE ANTONIN SCALIA: Oh, no, I don't agree with that. The concern was with torture, which is the intentional infliction of pain.
Now, these states -- the three-quarters of the states that have the death penalty, all except one of whom use this method of execution -- they haven't set out to inflict pain.
To the contrary, they've introduced it presumably because they, indeed, think it's a more humane way, although not one that is free of all risk.
DONALD VERRILLI: The second principle, your honor, is that this court's cases, including the ones that your honor referred to, have said that the standard is whether the means of execution inflicts unnecessary pain.
JUSTICE ANTONIN SCALIA: No, unnecessary and wanton. Unnecessary and wanton infliction of pain.
Opponents cite litigation concerns
JEFFREY BROWN: So Justice Scalia is saying that they might need to administer this better, but there's not a constitutional issue?
MARCIA COYLE: I think so. He's echoing also the concerns of the states, that if the standard of unnecessary risk of severe pain is adopted here that the states are constantly going to have to be fine-tuning their protocol every time an alternative comes up that looks like it might be less painful.
JEFFREY BROWN: The lawyer for the state of Kentucky, Roy Englert, came next. He was trying to make a similar argument to Justice Scalia.
MARCIA COYLE: Yes, he did. He warned that there could be endless litigation if the inmates' standard is adopted.
But he also argued that Kentucky has excellent safeguards in place. He told the justices that even though there's only been one lethal injection execution in Kentucky, there have been hundreds of practice sessions.
And he ran into some stiff questioning about who is involved in performing lethal injection, what kind of training...
JEFFREY BROWN: The personnel and training.
MARCIA COYLE: Right, what kind of training they've had.
JEFFREY BROWN: And he also ran into some challenge from Justice Stevens over the particular use of one of the drugs.
MARCIA COYLE: Yes.
JEFFREY BROWN: Let's listen to that exchange.
MARCIA COYLE: OK.
JUSTICE JOHN PAUL STEVENS, U.S. Supreme Court: If we decide the fact that Kentucky is doing an adequate job of administering this protocol, that would leave open the question whether the basic use of this second drug, which does nothing but avoid unpleasantness of our visitors, is itself constitutional? That way, we have to wait for another case to decide that, will we?
ROY ENGLERT, Lawyer for State of Kentucky: The court could write an opinion either way, obviously. There is a good reason to hold that use of the second drug is permissible.
JUSTICE JOHN PAUL STEVENS: Because to be very honest with you, I think you make a very strong case on the administration in Kentucky on the record in this case.
But I am terribly troubled by the fact that this second drug is what seems to cause all the risk of excruciating pain and it seems to be almost totally unnecessary, in terms of any rational basis for requiring it.
JEFFREY BROWN: So here they're talking about whether to use three drugs, whether to use two drugs, or whether to use one drug, right?
MARCIA COYLE: Yes, there are two important things in Justice Stevens' exchange here. One, as Mr. Verrilli pointed out, the second drug is what paralyzes movement. So if the first drug isn't administered properly, you will not know by looking at the inmate that it's been administered improperly.
JEFFREY BROWN: He or she may be in great pain, but you don't know.
MARCIA COYLE: That's right, exactly. And it's the third drug that does cause the pain.
And, secondly, Justice Stevens didn't totally accept the rationale for the second drug, which is to respect the dignity of the inmate dying, as well as to protect the sensibility of observers.
Justices want to resolve issue
JEFFREY BROWN: You mentioned this, but expand a bit. Both sides were very concerned about the question of whether to send this back to the lower courts for various types of analysis or comparisons to other methods of execution...
MARCIA COYLE: Yes.
JEFFREY BROWN: ... or whether that would cause huge delays and more stays in executions. That's a big issue here.
MARCIA COYLE: It is. On the court itself, the justices are very concerned about providing a clear standard to the lower courts so that this litigation does not continue to come to them.
Justice Souter in particular was concerned that, you know, if we just decide the Kentucky end of this case, there are going to be more cases that raise the questions about the second drug and whether one drug would be sufficient.
And it will keep companying piecemeal, and we need to resolve this. So send it back, maybe, and get a full record on a case that we can decide all this.
Justice Scalia pointed out, well, if you do that, it's going to take years, and there will be no executions during that period. And that's great for death penalty opponents, but it creates a problem because the law allows executions.
Ruling may have wide impact
JEFFREY BROWN: So to what extent was the larger picture of the death penalty hovering in the minds and questions of the justices today and the arguments?
MARCIA COYLE: Well, I think there are those on the bench, as well as outside the courtroom, who feel that these lawsuits -- which the Supreme Court allowed in 2004 and 2006 -- are just another means by death penalty opponents to postpone executions and eventually, from their perspective, hopefully end executions.
But the truth is that it's only been in the last two years because of these lawsuits that the public has become aware of how lethal injection actually proceeds, and there have been botched lethal injection executions.
States have been very secretive about exactly what the procedures are, sometimes out of respect for privacy of those who participate in it. So you can see both sides here, and somewhere in the middle is the truth.
JEFFREY BROWN: OK, Marcia Coyle, thanks very much.
MARCIA COYLE: My pleasure, Jeff.