The United States Supreme Court yesterday agreed to consider whether Kentucky's method of executing prisoners is constitutional.
The high court's decision in Kentucky's lethal injection case -- an appeal brought by convicted double murderers Ralph Baze and Thomas Clyde Bowling Jr. -- could have widespread implications across the country. Courts have struggled with whether the three-drug cocktail used in lethal injection violates an inmate's Eighth Amendment right not to suffer cruel and unusual punishment.
Baze, 52, had been scheduled to be executed yesterday, but the Kentucky Supreme Court stayed the execution, citing Baze's pending appeals. Bowling, 54, was scheduled to be executed in November 2004, but the execution was halted in part because of the pending legal challenge to how the state executes prisoners.
The U.S. Supreme Court's decision to hear the Kentucky case could temporarily stay executions across the country until a decision is reached, many experts said yesterday.
David Barron, an attorney who represents Baze and Bowling, called the decision by the court to hear the case "significant," noting that the high court hears only 1 percent of appeals that reach it. Baze and Bowling have argued that three drugs used in executions -- an anesthetic, a muscle paralyzer and a substance to stop the heart -- could cause pain. Because an inmate is given a muscle paralyzer, he or she could be in pain but could not alert anyone.
A Franklin Circuit Court judge upheld the state's lethal injection protocol in 2005 and the Kentucky state Supreme Court later affirmed that decision. Attorneys for Baze and Bowling appealed to the United States Supreme Court and have also asked the Kentucky Supreme Court to reconsider its decision. A hearing on the motion to reconsider is scheduled to be heard by the Kentucky Supreme Court on Nov. 15. Barron said yesterday that it is unclear how the the U.S. Supreme Court decision to hear the case will affect the November hearing before the state Supreme Court.
Oral arguments in the U.S. Supreme Court case have been tentatively scheduled for Jan. 7.
All 37 states that execute prisoners and the federal government use lethal injection, and in nearly every one of those states, attorneys for Death Row inmates have filed lawsuits challenging the way lethal injection is carried out. Those cases have met with mixed results.
Appeals courts across the country have reached opposite decisions based on the same or similar sets of facts, said Douglas Berman, a law professor at Ohio State University Moritz College of Law. Ten states have halted executions because of lingering questions about lethal injection. Just last week, a federal judge in Tennessee ruled that Tennessee's method of lethal injection is unconstitutional, and ordered the state to halt executions.
"The broader problem is the U.S. Supreme Court has never directly addressed the questions surrounding lethal injection protocols," Berman said.
Richard Dieter, the executive director of the Washington-based Death Penalty Information Center, agreed, saying it was likely that many pending appeals of the lethal injection protocol will be stayed or halted until the high court reaches a decision.
"I don't think the death penalty is going to be overturned," Dieter said. "This is not about the morality of the death penalty. This is about how we practice it today and whether there needs to be changes to make it more acceptable."
The Kentucky Justice and Public Safety Cabinet said in a statement that it was confident that Kentucky's method of executing prisoners would meet constitutional standards. "We are confident the United States Supreme Court will affirm the unanimous decision of the Kentucky Supreme Court, which upheld Kentucky's lethal injection protocol as constitutional."
