The U.S. Supreme Court recently heard arguments on whether the lethal injection method of execution violates constitutional protections against unnecessary pain and suffering. An appeal of the three-drug regimen used to carry out executions was filed on behalf of two death row inmates in Kentucky.
This marks the first time in more than a century that the high court has examined a type of execution, and to date, has never declared a given method of execution unconstitutional. The last time the court issued a decision on a method of execution was in 1878, when it upheld death by firing squad.
Since the Supreme Court reinstated capital punishment in 1976, a total of 35 out of 36 states with a death penalty law on the books, as well as the federal government, utilize lethal injection. Nebraska still uses the electric chair solely to execute condemned prisoners, while four other states keep the electric chair as an optional form of execution.
Under the uniform three-drug method, the inmate is injected with sodium thiopental, an anesthetic, followed by pancuronium bromide, which shuts down the lungs and paralyzes the body. The last chemical used, potassium chloride, induces a fatal heart attack.
Critics say the first chemical might not render the prisoner unconscious, and point to a handful of executions carried out in Florida, Ohio, California and Missouri, in which inmates allegedly did not receive an adequate dosage of sodium thiopental, and showed signs of consciousness and pain.
That point was argued by the Kentucky inmates' lawyer Donald Verrilli.
"The second drug, pancuronium bromide, will induce a terrifying conscious paralysis, and the third drug, potassium chloride, will inflict an excruciating, burning pain as it courses through the veins."
Verrilli suggested that risk could be reduced by utilizing a single drug, a strong barbiturate used to euthanize animals. He noted, the second drug, pancuronium bromide, is "just an anti-convulsant" designed to ensure that those witnessing the execution are not personally in "discomfort."
However, lawyer Roy Englert Jr., who represented the state of Kentucky, noted that his state's protocol calls for the condemned prisoner to be given three grams of sodium thiopental, which is ten times the surgical dose of the barbiturate.
Englert added, "The risk of pain can be avoided by single-drug protocol, but there's not a certain death with the one-drug protocol. It takes a very long time to die with the one-drug protocol."
The responses and questions posed by the justices during the arguments were varied.
Justice John Paul Stevens stated, "Everyone who goes through the process knows there is some risk of excruciating pain that could be avoided by a single-drug protocol. I'm terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary in terms of any rational basis for a requirement."
However, Justice Antonin Scalia, countered, "Where does that come from, that you must find the method of execution that causes the least pain? We have approved electrocution, we have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here.
Where does this come from that in the execution of a person who has been convicted of killing people, we must choose the least painful method possible? Is that somewhere in our Constitution?" Scalia also expressed concern about endless litigation if the issue is not settled soon.
"This never ends," Scalia said.
Since the high court agreed to hear the Kentucky case in September, all executions in the U.S. have essentially been placed on hold, pending a decision by the justices, expected by late June.
Several states filed friend-of-the-court briefs to encourage a decision upholding the lethal injection process, along with the California-based Criminal Justice Legal Foundation.
Kent Scheidegger, the foundation's legal director, said, "The Eighth Amendment does not require a painless execution, and while states should make every reasonable effort to assure that the lethal injection process is properly carried out, the possibility of an error occurring that may cause pain does not render the process unconstitutional.
The Supreme Court needs to provide a clear answer regarding what is and is not permissible in this area, so that justice can be carried out. This is far more important than whether any particular method is upheld or struck down. These cases have already dragged on far too long," Scheidegger stated.
The faith community, like the nation in general, is divided on the issue.
In 2000, the Southern Baptist Convention approved a resolution supporting the "fair and equitable use of capital punishment by civil magistrates as a legitimate form of punishment for those guilty of murder or treasonous acts that result in death." In support of that stance, the measure cited God's authorization in the Book of Genesis of capital punishment for murder and the Book of Romans approval of the death penalty as a "just and appropriate means" to be used by government authorities.
At the same time, the resolution called for the death penalty to be used only when there is "clear and overwhelming evidence of guilt" and "as justly and as fairly as possible without undue delay, without reference to race, class or status of the guilty," and urged the government to utilize "humane means."
Barrett Duke, vice president of public policy for the Southern Baptist Ethics and Religious Liberty Commission, noted, "In that resolution, the messengers made it clear that they believe the Bible teaches that God has given the civil authorities the power to use capital punishment. We are also keenly aware of the potential for irregularities and inconsistence in its application. As a result, we call for clear and overwhelming evidence of guilt, and also, equity in its application."
Duke continued, "Capital punishment is a very serious matter. The civil authorities must do all they can to assure appropriate legal protections for those who face it. They must also make sure that even as they exact the ultimate penalty, they do so in a manner that is respectful of the life they are taking. Everyone is created in God's image. That image deserves all the respect we can give it, even in capital punishment."
Likewise, the National Association of Evangelicals stands by its 1973 statement favoring capital punishment under certain conditions.
However, Heather Gonzalez, the NAE's association director, told Religion News Service that the "NAE hasn't really been active on the death penalty in recent years."
Just three weeks before the Supreme Court heard the Kentucky case, New Jersey became the first state to repeal its capital punishment law since the high court had struck down the death penalty in 1972 and allowed its reinstatement four years later.
In signing the measure to abolish capital punishment, Democratic Governor Jon Corzine said, "Society must determine if its endorsement of violence begets violence and undermines the sanctity of life. I answer yes, and therefore I believe we must evolve to ending that endorsement."
Sister Helen Prejean, a Roman Catholic nun who is a leading opponent of capital punishment and author of, "Dead Man Walking," was on hand for the signing ceremony in Trenton.
"The word will travel around the globe that there is a state in the United States of America that was the first to show that life is stronger than death, love is greater than hatred, and that compassion is stronger than the need for revenge," Prejean said.
Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes capital punishment, told RNS that Catholic clergy have been among the most visible and influential in making the moral case against carrying out executions. Dieter noted that Catholic bishops provided key testimony before New Jersey lawmakers voted to abolish the death penalty.
Dieter's organization, in its 2007 Year End Report, noted a growing trend in both the number of death sentences handed down and in the number of executions carried out.
In 2007, 110 inmates received death sentences, compared to 115 in 2006 and 284 in 1999.
Also, there were a total of 42 executions carried out last year. That's compared to 53 in 2006 and 98 in 1999.
The DPIC said, the number of inmates who received death sentences in 2007 is at its lowest point, since capital punishment was reinstated in 1976. The number of executions carried out last year was the lowest number since 1994, when there were 31.
The report also noted that only ten states carried out executions last year, with 62 percent by the state of Texas. In all, there have been 1099 executions carried out in the U.S. since 1976.
There also appears to be a growing trend against the death penalty on the international level.
In December, the United Nations General Assembly endorsed a non-binding resolution calling for a worldwide moratorium on executions. The vote was -104 UN members states for the measure, 54 against it, and 25 abstentions.
In the latest figures from Amnesty International, 91% of all known executions took place in six countries in 2006: China, Iran, Iraq, Pakistan, Sudan and the U.S. Recorded executions worldwide declined by more than 25% in 2006, with a drop from at least 2,148 in 2005 to at least 1,591.
And last month, Uzbekistan became the 135th country to abolish the death penalty.
[Home] [Introducing UNI] [News Coverage] [Features Page][Publications]