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.