BOB ABERNETHY, anchor: We have a report now on an issue the Supreme Court is expected to rule on soon. The question is whether the method of lethal injection most states use in executions is cruel and unusual punishment and, therefore, unconstitutional. Until that is settled, the concern over how criminals are put to death has had the effect of stopping executions altogether. Tim O'Brien reports.

TIM O'BRIEN: Ralph Baze gunned down two police officers as they tried to serve felony arrest warrants on him in 1992. Thomas Bowling shot and killed a young couple and wounded their two-year old son, after crashing into their car in 1990. Sentenced to die by lethal injection, their appeals have led to a nationwide suspension of the death penalty while the U.S. Supreme Court considers whether the current lethal injection protocol carries too great a risk of inflicting excruciating pain. Their attorney has asked the High Court to rule the current method violates the Eighth Amendment guarantee against cruel and unusual punishment.

DONALD VERRILLI (Attorney Speaking at Press Conference): This is way at the outer end of pain. It's really not a question about fine-tuning the system to create an incrementally less amount of pain. This is about avoiding torture.

O'BRIEN: In Kentucky, as in nearly every state, three drugs are used. The first is sodium thiopental, a barbiturate designed to avoid pain by putting the condemned to sleep; the second drug is pancuronium bromide designed to prevent involuntary convulsions once the third drug is administered. The third drug, potassium chloride, stops the heart, inducing death.

It doesn't always work as planned. It took Angel Diaz in Florida more than half an hour to die after technicians trying to anesthetize him missed the vein.

Most of the problems have arisen when the inmate was improperly anesthetized:

Mr. VERRILLI: There's no disagreement that if you don't get adequate anesthesia, and you get pancuronium bromide, and you get potassium chloride, you're going to suffer the most excruciating pain imaginable until you die.

O'BRIEN: Oklahoma, in 1977, became the first state to adopt lethal injections for executions in the belief it would be more humane than the electric chair. Dr. Jay Chapman, then the state's medical examiner, developed the three-drug formula still used today. Now, thirty years later, Chapman insists his formula works and dismisses the current High Court controversy.

DR. JAY CHAPMAN (Former State Medical Examiner, Oklahoma): To me it's a tempest in a teapot, much ado about nothing. If the protocol is carried out properly, as it was set up, then there cannot be any possible issues of cruelty or unusual punishment or pain or suffering. The real issue, of course, is not lethal injection, but the real issue is people who want to abolish the death penalty totally.

O'BRIEN: The issue before the Supreme Court involves only a method. It's not about the death penalty itself. But as the arguments unfolded last January, it became apparent that these cases are still riddled with many of the ethical and moral questions that have long permeated the death penalty debate -- whether there can ever be such a thing as a "humane" execution, and in fighting evil, is there ever a justification for the willful infliction of unnecessary pain?

Several justices appeared troubled by the use of the second drug, pancuronium, that causes paralysis. John Paul Stevens, for example, noted it leaves witnesses unable to determine if the anesthesia is working. Roy Englert argued the case for Kentucky: ROY ENGLERT (Attorney for Kentucky): It does bring about a more dignified death, dignified for the inmate, dignified for the witnesses. It's not just...

JUSTICE JOHN PAUL STEVENS: The dignity of the process outweighs the risk of excruciating pain?

Mr. ENGLERT: No, your honor, no...

Justice STEVENS (interrupting): Then the risks of excruciating pain outweigh the risk of an undignified death, a substantial risk of excruciating pain? I'm terribly troubled by the fact that this second drug is what seems to cause all the risk of excruciating pain and seems to be almost totally unnecessary in terms of any rational basis for requiring it.

O'BRIEN: But Justice Antonin Scalia openly questioned whether there is anything in the Constitution that prevents the state from inflicting pain, even "unnecessary pain."

JUSTICE ANTONIN SCALIA: We have approved electrocution. We have approved death by firing squad. I expect both of those have more possibilities of painful death then the protocol here. 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? I think you have to show it's unusual, not painless. Cruel and unusual is what we're talking about. There's no painless requirement there.

O'BRIEN: Scalia had succinctly embraced the state's case:

Mr. ENGLERT (At Press Conference): The state has no obligation to guarantee a pain-free execution, but Kentucky does everything in its power to bring about a pain-free execution. Can they do more? In human endeavors, you can always do more. Can you turn that "more that could be done" into a constitutional issue just because human beings can always do more? If so, you'll never carry out any execution.

O'BRIEN: The inmates' lawyer urged the Court to at least insist that well qualified professionals mix and administer the lethal drugs. That, too, is problematic. Those most qualified might be doctors, and the American Medical Association strongly opposes physician participation in lethal injections. Not all doctors agree, and a handful have spoken out in opposition. Dr. David Waisel, an anesthesiologist at Children's Hospital in Boston, says the physician's oath to alleviate suffering applies to everyone, including inmates on death row.

DR. DAVID WAISEL (Anesthesiologist, Children's Hospital, Boston): Our job as physicians is to reduce harm. There is no good reason I can see not to permit willing physicians to minimize what is an egregious final insult to state-required punishment.

O'BRIEN: The end result is death. Isn't that harm?

Dr. WAISEL: My response to that would be, well, it's going to happen anyway. It takes a great deal of skill to start an intravenous catheter, to give medication, to assess the inmate's depth of anesthesia--whether they're asleep or not. And, unfortunately, physicians are the best people to do this. There are people suffering; I have the skills and ability to help them.

O'BRIEN: Last September, Waisel explained his views in the prestigious medical journal, MAYO CLINIC PROCEEDINGS, and got pummeled by his peers: "It was with a mixture of revulsion and consternation that I read and reread the commentary by Dr. Waisel," said the chief of neurology at the Baystate Medical Center in Springfield, Massachusetts. From the Chicago and Illinois Medical Societies: "We are healers. We are not medically licensed to kill." And, "it is simply not ethical to participate in an action that has as its sole purpose the death of an individual"--that from Dr. Mark Levine, the chairman of the AMA's council on ethical and judicial affairs.

DR. MARK LEVINE (Chairman, AMA Council on Ethical and Judicial Affairs): And if we participate in executions, it violates, really, our primary ethical responsibility, which is to maintain the trust of the patients that we care for. They have to believe that we are there for them and that we are not there as an instrument of the state to take lives.

O'BRIEN: The AMA's code of ethics even prohibits a doctor from taking any "action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned."

O'BRIEN (To Dr. Levine): You have an inmate writhing in pain, the doctor sees the system isn't working, knows what's wrong. He can't say a word. Some would say that's inhumane.

Dr. LEVINE: There are ways to do it right.

O'BRIEN: Doctors can't tell you what the ways are?

Dr. LEVINE: It would be inappropriate for us to be on the side of anything other than healing and maintaining the trust of our patients.

O'BRIEN: The doctor who pioneered the lethal injection has no such reservations. Jay Chapman distinguishes practicing medicine from participating in an execution.

Dr. CHAPMAN: Personally, I have no problem with it, because carrying out a mandate of the state, one, this is not a patient upon whom one is practicing medicine. It cannot possibly be construed as the practice of medicine, so I think it's up to each individual's own decision. I don't think it's a matter of ethics, as far as I'm concerned.

O'BRIEN: The inhabitants of death row have not generally been sympathetic figures. When Florida debated whether to adopt lethal injection, some of the opposition came from death penalty proponents who felt it made death too easy, that those who have committed horrible crimes should be made to suffer.

Dr. CHAPMAN: I can understand that point of view very well, because during most of my career I did autopsies on homicide victims. I've done autopsies on hundreds of them, and I have seen what people are capable of, of pain and dismemberment and all sorts of things inflicted on their fellow human beings, and the problem is that the people who have done these things and have killed these people, they have not only affected their victims directly, but what about the other loved ones of those victims who are sons, fathers, daughters, wives, and even other people who are connected to these people, whose lives may never be the same because of the actions of this one individual?

Dr. WAISEL: They're people, and they deserve a certain amount of respect.

O'BRIEN: Even hardened killers?

Dr. WAISEL: Anybody! Everybody!

Mr. VERRILLI (Speaking at Press Conference): It is natural to have an instinct in a situation where someone has been convicted of a heinous crime to want to inflict pain on that person, because we're angry with what that person has done. But that's why the Framers put the Eighth Amendment into the Constitution. It's a recognition that we need, in order to be a civilized society and to have respect for human dignity, to constrain that impulse.

O'BRIEN: The Supreme Court is likely to sidestep the moral questions that surround capital punishment and focus instead on what states must do to avoid unnecessary pain, for at today's Supreme Court, the question is no longer whether Baze and Bowling and the other 3,000 inmates on death row should be executed -- only when, and how.

For RELIGION & ETHICS NEWSWEEKLY, I'm Tim O'Brien in Washington, D.C.