By a 7-2 vote, the high court rejected a challenge by two Kentucky death row inmates, Ralph Baze and Thomas Bowling, who argued the current lethal injection method violated the constitutional ban on cruel and unusual punishment by inflicting needless pain and suffering.
The state of Kentucky uses three drugs to sedate, paralyze and kill inmates. The three-drug method is used by 35 states and the federal government.
“We … agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment,” Chief Justice John Roberts said in the opinion.
Forty-two people were executed last year among more than 3,300 people on death row across the country. Another roughly two dozen executions did not go forward because of the Supreme Court’s review, death penalty opponents said.
Justices Samuel Alito and Anthony Kennedy joined Roberts’ opinion. Justices Antonin Scalia, Clarence Thomas, John Paul Stevens and Stephen Breyer all said they agreed with the result, though not with Roberts’ reasoning. Justices Ruth Bader Ginsburg and David Souter dissented.
Roberts’ opinion did leave open subsequent challenges to lethal injection practices if a state refused to adopt an alternative method that significantly reduced the risk of severe pain.
Death penalty opponents argued that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.
States began using the “three-drug cocktail” method in 1978 as an alternative to electrocution, the gas chamber, hanging and shooting. But in recent years there have been botched lethal injection executions in Florida, Ohio and California, in which inmates took up to 30 minutes to die.
Baze and Bowling wanted the court to order a switch to a single drug, a barbiturate, that causes no pain and can be given in a large enough dose to cause death. And at the very least, they said, the state should be required to impose tighter controls on the three-drug process to ensure that the anesthetic is given properly.
Roberts said “a condemned prisoner cannot successfully challenge a state’s method of execution merely by showing a slightly or marginally safer alternative.”
Ginsburg, in her dissent, said she would ask Kentucky courts to consider whether the state includes adequate safeguards to ensure a prisoner is unconscious and thus unlikely to suffer severe pain.
Stevens said the court’s decision would not end the debate over lethal injection. “I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself,” Stevens said.