Court Upholds Lethal Injection; Moratorium Lifted by Ruling

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Byline: Jerry Seper, THE WASHINGTON TIMES

The Supreme Court yesterday upheld Kentucky's use of lethal injections for death-row inmates in a 7-2 vote, describing the process as "more humane" and ending a national halt on executions.

The decision prompted Virginia Gov. Tim Kaine yesterday to lift his state's moratorium, although Maryland Gov. Martin O'Malley declined to do the same immediately in his state and set the stage for a political fight.

"The firing squad, hanging, the electric chair and the gas chamber have each in turn given way to more humane methods, culminating in today's consensus on lethal injection," wrote Chief Justice John G. Roberts Jr. in the majority opinion. "The Constitution does not demand the avoidance of all risk of pain in carrying out executions."

Justice Roberts said there was no evidence to show that the 36 states that currently use the three-drug system of lethal injections, along with the federal government, had subjected inmates to needless pain when they were put to death.

Joining Justice Roberts were Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Samuel A. Alito Jr. The dissenters were Justices David H. Souter and Ruth Bader Ginsburg.

The ruling is a major defeat for death-penalty opponents and ends a seven-month moratorium on lethal injections nationwide that began in September when the high court took the Kentucky case.

Opponents had argued that the three drugs used to render an inmate unconscious, then paralyze him and finally induce a heart attack - sodium pentothal, pancuronium bromide and potassium chloride - constituted cruel and unusual punishment if not properly administered. The drugs have been used in more than 1,000 lethal injections.

Justice Ginsburg, in writing the minority opinion, said it was "undisputed" that the second and third drugs used in Kentucky's lethal injection protocol would cause "a conscious inmate to suffer excruciating pain" if not properly administered.

"Kentucky's system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial," she said. "I would not dispose of the case so swiftly given the character of the risk at stake."

Justice Roberts' majority opinion, however, did not close the door to future lethal injection challenges. He said that although Eighth Amendment guarantees had accommodated more humane methods of execution, lawmakers could take any steps they deemed appropriate "to ensure humane capital punishment."

Maryland has a de facto moratorium on capital punishment because of a ruling in late 2006 by the state's highest court. The Court of Appeals ruled that the state's protocol for the lethal injection procedure was implemented without proper approval by a legislative committee.

Executions can't resume until the O'Malley administration submits new rules for the committee to approve, an action that he has delayed, saying he would like to give lawmakers a chance to repeal capital punishment.

"I feel that one of the big variables out there has been resolved," Mr. O'Malley, a Democrat, said yesterday, adding that he plans to wait until the completion of a death penalty study due in December, the third of its kind in the past six years, before making any decisions. Death penalty opponents withdrew a proposal last month to repeal the state execution law, after it became apparent that the measure would not pass the state Senate. …