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Court to Consider Execution by Lethal Injection

James Vicini

WASHINGTON - The Supreme Court, in a case being watched around the world, on Monday hears arguments about whether to ban the lethal three-drug cocktail used in most U.S. executions because it inflicts excruciating pain.0106 05The hour-long session marks the first time in more than a century the court has examined a specific method of capital punishment. It comes at a time when the death penalty itself appears to be in retreat in one of the few democracies that still practices it.

Arguments will focus on whether the commonly used lethal injection method violates the constitutional ban on cruel and unusual punishment, but the case has also prompted a wider debate about capital punishment.

Executions across the United States have come to a temporary halt since the court agreed in late September to hear the case. Last year, 42 people were put to death -- a 13-year low -- while 110 defendants were sentenced to die, the lowest number since 1976 when the Supreme Court restored capital punishment.

Last month, New Jersey became the first state to abolish the death penalty since 1976, reducing the number of states that permit it to 36.

The last time a specific method of execution was considered occurred in 1879, when the Supreme Court upheld the use of a firing squad.

The court's ruling, expected by the end of June, could decide if the current lethal drug combination is constitutional or whether states have to come up with alternatives that pose less risk of pain and suffering.

"The case has the potential to be one of the most significant death penalty rulings in modern history," said David Masci, senior research fellow at the Pew Forum on Religion & Public Life.

Support for the death penalty remains strong in the United States at around 60-65 percent of the public, but the number has been dropping in recent years along with the number of executions and death sentences.

Juries have become less willing to impose the death penalty and prosecutors to seek it, partly because of concern over wrongful convictions and how lethal injections have been carried out.

There have been botched executions by lethal injection in Florida and California in which inmates took up to 30 minutes to die. The federal government and all but one of the states with the death penalty use lethal injections for executions.

The standard method of lethal injection involves administering sodium thiopental, which causes unconsciousness, pancuronium bromide, which results in paralysis, and potassium chloride, which stops the heart.


The legal challenge was brought by Kentucky death row inmates Ralph Baze and Thomas Bowling. Their attorney, David Barron, argued the latter two drugs could be omitted, eliminating the danger of conscious asphyxiation and excruciating pain.

He said the evolution of execution methods in the United States, from hanging in the 19th century to electrocution and then lethal gas, reflected a continuing quest to find a more humane way of killing, but that each new method turned out to be less humane than intended.

State attorneys defended the procedures that would be used to execute Baze and Bowling. "Kentucky seeks to execute them in a relatively humane manner," state lawyer Jeffrey Middendorf said in a brief submitted to the Supreme Court.

The Bush administration supported the state.

"The risk of pain from lethal injection has not been shown to be greater ... than the risk of pain from other methods of execution accepted by this court, including electrocution and hanging," Solicitor General Paul Clement said.

With the court evenly split between liberal and conservative factions, the case could turn on moderate Justice Anthony Kennedy, who often casts the decisive vote on contentious issues like the death penalty.

The four liberals are Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer while the conservatives are Chief Justice John Roberts and Justice Samuel Alito, both appointed by President George W. Bush, and Justices Antonin Scalia and Clarence Thomas.

Reporting by James Vicini, editing by Alan Elsner

© 2008 Reuters

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