Justices Mull Lethal Injection Arguments

GWEN IFILL:

While today's Supreme Court case turned on a fine legal point — whether a death row inmate can use civil rights law to challenge his own execution — the arguments ranged farther a-field, touching on the question of whether lethal injections are too painful a way to put someone to death.

Inside the chamber today, as always, was Marcia Coyle, who covers the court for the National Law Journal.

Welcome back, Marcia.

MARCIA COYLE, National Law Journal:

Thanks, Gwen.

GWEN IFILL:

So what was today's case about? And what was it not about?

MARCIA COYLE:

Well, the case comes to the court against the background of an increasing number of claims around the country by death row inmates saying that lethal injection is unconstitutional, and they're raising these claims, basically, for two reasons.

There have been several executions in which it appeared the inmate was aware of what was happening, was not unconscious when the final drugs were administered to kill him, and appeared to be in quite a bit of pain.

Also, there was a study published about a year ago in a British medical journal which looked at autopsy results on a number of death row inmates and found that the drug that's used to make them unconscious was at such low levels that apparently they would be aware when the final drug, which is supposed to cause excruciating pain and stops the heart, was finally administered.

GWEN IFILL:

But today they weren't really arguing about the constitutionality of lethal injection, were they?

MARCIA COYLE:

That's absolutely right. In fact, this death row inmate, Clarence Hill from Florida, was sentenced to death for the murder of a police officer in 1982.

His attorney, who was first up, said: We are not challenging Florida's authority to execute Mr. Hill; we are challenging the drug protocol, the combination of drugs that are used to kill him. Florida can still execute him, but it has to be done in a more humane way.

GWEN IFILL:

So this became a civil rights dispute or appeal, as it were, not a habeas corpus appeal, which is the normal way you would stop an execution.

MARCIA COYLE:

Yes, he's arguing for the vehicle of a civil rights suit. And that's an important distinction, because it's an easier claim to bring than a habeas corpus petition.

GWEN IFILL:

So the arguments today were not just about whatever the legal point was; they ended up being about this larger issue, about what is too much pain, for instance?

MARCIA COYLE:

When the attorney said that Florida could still go forward and execute his client but do it in a more humane way, it opened the door to Justice Scalia who quickly became the most aggressive questioner of the defense attorney.

He said: But you don't specify what is a more humane way. OK, we say, "Go ahead, go back to the lower courts, bring your civil rights claim against Florida's particular drug protocol." You win. They offer an alternative. You decide, "Hey, this isn't constitutional, either," so you challenge it. And years and years go by.

He was voicing one concern of the states that there's endless litigation here.

The attorney said: Not so. Look at North Carolina. There was a death row inmate there who challenged lethal injection, the drugs in that lethal injection, and the state responded by buying a machine that monitored the breathing to determine whether this inmate was aware of what was happening. That settled the case; there was no more litigation.

GWEN IFILL:

But there is an interesting point that they discussed today which is, whose job is it to come up with an alternative, if indeed lethal injection itself does not work?

MARCIA COYLE:

There was that point and, as you mentioned earlier, there was the pain point.

Justice Alito first got into the pain point by saying: Well, of all the lethal injection methods, which one is constitutional?

And the attorney said: Well, if the drug that makes you unconscious works, that's probably constitutional, but here there's excruciating pain.

And Justice Scalia countered: Well, you know, what's excruciating pain? What's too much? Hanging isn't an easy way to go. Don't you just want a solution where there's no pain?

And the attorney said: No, your precedents say the state has to avoid wanton and gratuitous pain.

And then Justice Breyer brought up the point: Well, the state is arguing that you have to provide and you have to offer the alternative. And he said that's an odd thing to ask a defense attorney, to come up with a legal alternative way to kill his client.

The state of Florida said: No, this is the burden of the death row inmate. It's a civil rights suit.

Justice Souter said: Well, what's your legal authority for putting the burden on the defense attorney?

And she really couldn't answer that. It was Chief Justice Roberts who said: Well, if the defendant doesn't offer the alternative, then it really does look like this is a suit challenging your conviction and that has to be a habeas case.

GWEN IFILL:

Has the Supreme Court ruled in lethal injection cases before that — in ways that might give us a clue to what they were trying to wrestle with today?

MARCIA COYLE:

Two years ago, the Supreme Court had a case out of Alabama in which an inmate challenged what's known as the cut-down method. Alabama was going to have to cut down through his arm to access a vein in order to deliver the lethal injection combination of drugs.

The Supreme Court held there that this inmate could use a civil rights suit to challenge that, and the inmate had said there was a more humane alternative. But the court itself has never ruled that lethal injection is constitutional or isn't constitutional.

The Bush administration also argued in the case today and told the justices that the state's only obligation here is really to avoid inflicting wanton and gratuitous pain.

And Justice Souter said he had a hard time accepting that that's the only obligation on the state.

And Justice Kennedy said: Doesn't the state have a minimal obligation to find the most humane method?

And the Bush administration basically said no, but states will try to do that.

GWEN IFILL:

Is there any concern or was there any expressed that, if the court were to rule in Clarence Hill's favor in this case, they would basically be throwing the doors of the court open to future challenges in different ways, taking different shots at this from other people, other states?

MARCIA COYLE:

It seems to me that, if the court does OK the civil rights action here, that the most immediate impact would be that death row inmates would be able to use that civil rights action to challenge lethal injection; it doesn't mean that they would prevail.

If the court ultimately says something more than that and discusses the issue of: How much pain? What do states have to do? Do they have to find the most humane method? Who has the burden of coming forward with an alternative if this particular drug protocol is unconstitutional? Then it may have a widespread impact.

GWEN IFILL:

Marcia Coyle, as always, thank you.

MARCIA COYLE:

My pleasure.