The United States Supreme Court will hear argu­ments on Monday, January 7, on whether or not the lethal injec­tion process in Kentucky is a vio­la­tion of the Constitution’s 8th Amendment ban on cru­el and unusu­al pun­ish­ments. While the case, Baze v. Rees, has prompt­ed a de fac­to mora­to­ri­um on exe­cu­tions, it does not con­cern the con­sti­tu­tion­al­i­ty of the death penal­ty itself.

Currently, 35 of the 36 states with the death penal­ty use vari­a­tions of the same three-drug com­bi­na­tion in their lethal injec­tion exe­cu­tions. Kentucky uses thiopen­tal to make the inmate uncon­scious, pan­curo­ni­um to par­a­lyze the mus­cles, and potas­si­um to ulti­mate­ly stop the inmate’s heart. The peti­tion­ers in Baze state that this com­bi­na­tion of drugs has a high like­li­hood of pro­duc­ing severe and unnec­es­sary pain in the pris­on­er. The sec­ond and par­a­lyz­ing drug, how­ev­er, makes the pris­on­er unable to exhib­it any pain. Death row inmates in oth­er states have also chal­lenged lethal injec­tion pro­ce­dures in recent years.

Deborah Denno, a Fordham University law pro­fes­sor who sup­ports the posi­tion of the peti­tion­ers in Baze, agrees that the lethal injec­tion pro­ce­dures as prac­ticed cause unnec­es­sary suf­fer­ing. The num­ber of botched exe­cu­tions around the coun­try has led to a clos­er exam­i­na­tion of this sub­ject. She told USA Today, ​“The height­ened scruti­ny is unprece­dent­ed. There is less trust now in depart­ments of cor­rec­tions and what hap­pens” dur­ing exe­cu­tions.

There were only 42 exe­cu­tions last year, a 13-year low, with many stays grant­ed because of lethal injec­tion chal­lenges.
(“High court to weigh in on lethal injec­tion,” by Joan Biskupic, USA Today, January 4, 2008). See Supreme Court and Lethal Injection.

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