The US supreme court yesterday cleared the way for executions to resume when it ruled that the lethal injection procedure used in Kentucky does not violate the American constitution's ban on "cruel and unusual punishment".
The 7-2 ruling means that an informal moratorium on executions in place since the court agreed to hear the case last September can now be lifted. Virginia's governor, Tim Kaine, wasted little time, immediately giving the go-ahead for executions in to resume in his state.
The case, brought by two death row inmates, argued that the procedure of lethal injection, which is intended to knock out, paralyse and then kill, is inhumane. They suggested a single-dose of a powerful barbiturate as an alternative. The three-drug protocol used in Kentucky is similar to that used in the 36 other states which use lethal injection.
But the court, in a splintered decision, disagreed with the plaintiffs in the case. Writing the majority opinion, which was only agreed in full by two other justices, the chief justice, John Roberts, argued that the standard for deciding whether a method violated the constitution was if it posed a "substantial risk of serious harm". The plaintiffs had proposed that the standard should be "unnecessary harm".
"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," Roberts wrote. Four other justices agreed with the opinion while two dissented.
In the ruling Roberts said: "A condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative."
Moreover, he said, the single-drug method "has problems of its own, and has never been tried by a single state".
Opponents of the three-drug method argue that if the first anaesthetic is not properly administered the following two drugs can cause excruciating pain. The paralysis drug, critics say, would prevent the prisoner from expressing that pain.
The ruling, however, appeared to leave open to question the processes that individual states use to administer the three drugs, monitor the condemned person's condition and complete the execution. Opponents of the death penalty have argued that in several states staff are not properly trained, and that the environment in which many executions take place are inadequate, with insufficient lighting and cramped conditions.
The debate in the supreme court went beyond the issue of whether the three-drug procedure was constitutional.
Another justice, John Paul Stevens, wrote that while he agreed with the ruling, he thought the issue would be revisited.
"The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived," Stevens wrote. He went on to suggest that he would vote to abolish the death penalty.
Kentucky has only had one execution using lethal injection. A total of 42 executions took place in the US last year, the lowest figure for 13 years. Despite the informal moratorium, only China, Saudi Arabia, Iran and Pakistan carried out more executions each than the US in 2007, according to figures released by Amnesty International on Tuesday. Together the five countries carried out 88% of the 1,252 known executions last year.
Earlier this year New Jersey became the first state to abolish the death penalty since its reintroduction in the US in 1976.
Ty Alper, a death penalty opponent and associate director of the Death Penalty Clinic at the University of California, Berkeley, School of Law, said he expects challenges to lethal injections will continue in several states.
© 2008 The Guardian