High court to hear lethal injection case

Two years earlier in Lexington, Ky., Thomas C. Bowling Jr. crashed his car into another car parked outside a dry-cleaning business. Bowling emerged from the wreck, drew a gun and repeatedly fired it into the other vehicle, killing the couple sitting inside and wounding their 2-year-old son.

Baze and Bowling both were convicted of first-degree murder and sent to Kentucky’s death row, where for years they have awaited execution by lethal injection. But their executions — along with those of all other inmates facing lethal injection across the country — have been on hold since last September, when the U.S. Supreme Court granted the two men the rare chance to bring a challenge to a method of capital punishment to the nation’s highest court.

Oral arguments are scheduled for Monday (Jan. 7) in Baze v. Rees, the joint lawsuit brought by Baze and Bowling against John D. Rees, commissioner of the Kentucky Department of Corrections, and two other state officials, including former Gov. Ernie Fletcher (R). In the lawsuit, the prisoners claim the three-drug combination used to put inmates to death in Kentucky — and in the 35 other states that allow lethal injection — violates the U.S. Constitution’s ban against cruel and unusual punishment.

“From all accounts that I’ve read, the stuff is like liquid fire going into your veins. Taking my life should be enough,” Baze said in a videotaped interview with The New York Times in 2005. Baze and Bowling filed their initial challenge to Kentucky’s lethal injection procedure in state court in 2004.

The Kentucky prisoners’ case is among the most closely watched of the current Supreme Court term, in part because the justices’ decision to hear the challenge has resulted in a de facto moratorium on lethal injections nationwide. Governors, state and federal courts and the Supreme Court itself have intervened to postpone all scheduled lethal injections until Baze v. Rees is decided, likely sometime in late spring or summer. As a result, 42 prisoners were executed in the United States last year, the fewest since 1994.

The case has major implications for states. The justices could uphold the current drug protocol in lethal injections or force legislatures or state departments of correction to spell out new procedures. Though some states have slightly altered their lethal injection protocols recently — Florida, Georgia, South Dakota, Tennessee and Washington did so in a three-month period last year — none have made major changes to use of the drugs being challenged.

With either outcome, advocates on both sides of the case expect the high court to provide states with more guidance on whether their lethal injection protocols meet constitutional requirements. The Supreme Court has not ruled on a method of execution since 1879, when it upheld the firing squad in Utah, then a territory, not a state.

The legal team for Baze and Bowling will not argue that the death penalty itself is unconstitutional — nor did they ask the justices to consider that question. Instead, they are seeking changes in the way lethal injections are carried out. They claim the current drug regimen is administered haphazardly across the country and that less painful methods exist, including a single-drug procedure used to euthanize animals.

According to the Kentucky prisoners’ lawyers, the three-drug formula now used in lethal injections — sodium thiopental (which causes unconsciousness), pancuronium bromide (which causes paralysis) and potassium chloride (which stops the heart) — masks excruciating pain felt by dying inmates. If the first drug doesn't work, lawyers say, prisoners are unable to signal their distress because of the second, paralyzing drug.

Critics point to botched executions like that of Ohio double-murderer Joseph Clark, who in 2006 took nearly 90 minutes to die — lethal injections normally take about 15 minutes — when prison officials had difficulty finding a vein to inject the deadly drugs. Clark did not lose consciousness immediately and repeatedly complained that the process “don’t work,” according to witnesses.

Lawyers say euthanized animals — typically put down using a single barbiturate — are killed more humanely and more effectively than inmates executed by lethal injection. In fact, a group of five veterinarians filed a supporting brief with the Supreme Court criticizing the procedure used by Kentucky and other states.

“Kentucky’s current lethal injection protocol would not meet the minimum standards for the humane euthanization of animals,” the veterinarians wrote in the brief.

In their brief to the high court, lawyers for the state of Kentucky — supported by briefs from 16 other states and the federal government, as well as outside groups — say the U.S. Constitution does not require lethal injection to be totally free of pain and that Baze and Bowling cannot prove that the current procedure amounts to cruel and unusual punishment.

They point to past executions to support their point: 929 inmates have been put to death by lethal injection since the Supreme Court reinstated capital punishment in 1976, but only a small number of those have proven problematic. In Kentucky, only one prisoner has been put to death by lethal injection — Eddie Lee Harper in 1999 — and the death sentence was carried out with no apparent problems.

Kentucky’s lawyers say each of the three chemicals in lethal injection serves a purpose; the muscle relaxant, for example, prevents a prisoner from jerking and knocking an IV out of place, according to the state.

See related stories:

New Jersey latest to try death-penalty repeal

Supreme Court stops Mississippi execution

Lethal injection moratorium inches closer

Lethal injection goes on trial, but goes on

Nebraska legislator fights death penalty to the end

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Contact John Gramlich at jgramlich@stateline.org.