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WASHINGTON – The Supreme Court on Wednesday ruled that the most common method of lethal injection is constitutional, a decision sure to restart the nation’s dormant death chambers.
But the court’s splintered reasoning also seems to make likely more challenges to the way the capital punishment is administered in the United States.
The justices voted 7-2 that the three-drug combination used by Kentucky, similar to that used by the federal government and 34 other states, including Indiana, does not carry a risk of substantial pain so great as to violate the Constitution’s ban on cruel and unusual punishment.
“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual,” Chief Justice John Roberts wrote.
The decision’s most likely immediate effect is to dissolve the de facto moratorium on executions that has taken root since the court announced in September that it would decide the case, Baze v. Rees.
But commentators as diverse as Amnesty International and Justice Clarence Thomas predicted that the divided court’s decision is, in Thomas’ words, “sure to engender more litigation.”
“I assumed that our decision would bring the debate about lethal injection as a method of execution to a close,” wrote Justice John Paul Stevens, who used the occasion to announce that his 33 years on the court has led him to believe that capital punishment is unconstitutional. “It now seems clear that it will not.”
That is because even though seven justices – including Stevens, who said the court’s precedents required his consent – found Kentucky’s procedures constitutional, a majority could not agree on the proper standard with which to judge execution practices.
Roberts said they should be examined to determine whether they pose a “substantial risk of serious harm,” rather than the “unnecessary risk” proposed by lawyers for two men on Kentucky’s death row.
But only Justices Anthony Kennedy and Samuel Alito agreed with him.
Thomas, joined by Justice Antonin Scalia, rejected the test and said a method of execution violates the Eighth Amendment’s cruel and unusual punishment prohibition “only if it is deliberately designed to inflict pain.”
Justice Stephen Breyer joined Stevens in saying Kentucky’s process met the court’s standards but said he disagreed with Roberts’ test as well.
Justice Ruth Bader Ginsburg, joined by David Souter, dissented, saying execution methods must not create an “untoward, readily avoidable risk of inflicting severe and unnecessary pain.” She said she could not be sure Kentucky had taken all necessary safeguards.
