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Justices ask about pain of execution

Florida's method of lethal injection reaches the high court, where justices are clearly split over the merits of an inmate's case.

By CHRIS TISCH
Published April 27, 2006

WASHINGTON - One Supreme Court justice asked why Florida puts people to death with drugs deemed inhumane for euthanizing pets.

Other justices questioned why the state was using drugs that a study shows could cause pain.

One suggested that defense lawyers would attack any state-proposed method of killing.

The pointed remarks were part of wide-ranging oral arguments Wednesday in a Florida death penalty case that showed the high court's interest in the debate over lethal injection.

Justices peppered lawyers with questions about the possible pain caused by lethal injection and efforts Florida could - or should - make to ensure the method is as painless as possible.

Legal scholars were intrigued that the court spent so much time discussing the merits of lethal injection, given that the issue raised by Florida death row inmate Clarence Hill was a procedural question about whether he has the right to make the argument at all.

"This is much more interesting than I thought it would be. They really seemed engaged in the merits" of lethal injection, said Michael Mello, a Vermont law professor who once defended Florida death row inmates. "These are the kinds of questions they would ask if they were really taking seriously the constitutional challenges."

The more liberal members of the court questioned why Florida hasn't at least investigated a recent medical journal study that found the chemicals used during lethal injections can cause great pain before death. Hill's lawyers say that would make the practice unconstitutionally cruel.

However, more conservative justices didn't seem as moved. Justice Antonin Scalia asked Hill's attorney, D. Todd Doss, whether an execution method is unconstitutional if it causes "any pain" instead of "excruciating" pain.

"I just don't know from where you are deriving this principle that there cannot be any pain," Scalia told Doss. "It seems like an extreme proposition."

In 2000, Florida became one of the last states to convert from the electric chair to lethal injection, soon after the U.S. Supreme Court agreed to review whether the chair was cruel punishment.

The electric chair had withstood more than 15 years of legal challenges before executions in which inmates burned, smoked and bled gave capital defense attorneys enough legal traction to fight it.

Today, all but one of the 38 death penalty states uses lethal injection, as does the federal government and the military. Only Nebraska uses the chair, though that state hasn't executed anyone in years.

The three-drug combination used in Florida was introduced in Oklahoma in 1977 and is used in most other states. Inmates first receive a pain killer, then a drug that paralyzes them and finally one that causes a fatal heart attack.

Capital defense lawyers say a recent study found inmates can feel suffocation and intense burning, but cannot express pain because they are paralyzed. Though the inmate may appear to die peacefully, he or she suffers.

"The state might have a minimal obligation to investigate this," said Justice Anthony M. Kennedy, the court's possible swing vote.

Scalia and Justice Samuel Alito quizzed Doss about whether any method of execution would ever satisfy defense attorneys. Scalia suggested the defense would attack anything the state proposed, hoping to tie up appeals and delay executions.

"You'd challenge that and another few years go by," said Scalia, whose antipathy to death penalty challenges is well known.

Hill, 48, is condemned for the 1982 murder of Pensacola police Officer Stephen Taylor. Hill shot and killed Taylor, 26, during a bank robbery. Hill appeared to have exhausted all his appeals when Gov. Jeb Bush scheduled his execution for Jan. 24.

Doss filed an 11th-hour federal civil rights lawsuit contesting Florida's method of lethal injection as illegally painful. The 11th U.S. Circuit Court of Appeals in Atlanta denied the motion, calling it repetitious.

Doss appealed to the U.S. Supreme Court, suggesting he could challenge lethal injection through the civil rights action.

Unlike the Atlanta appeals court, other federal districts have allowed defense attorneys to challenge lethal injection through a civil rights suit.

Kennedy granted Hill a stay just minutes before his execution was set to begin. Hill was strapped to a gurney with a tube in his arm when the execution was called off, Doss said. The full court stayed the execution the next day.

Legal experts wondered why the court would be interested in the case. Was it simply to sort out a procedural wrinkle between the federal district courts? Or could some justices have some interest in the constitutionality of lethal injection?

Because of the split in the court, the decision could create a continuing path of confusion for the death penalty in America, said Doug Berman, a law professor at Ohio State University.

"I'm quite convinced that there is nothing that is going to happen that is going to create a clean, easy path going forward," Berman said. "It's going to be how the court decides to frame it and explain it. And I'm pretty confident that the court will not be in one voice."

Even if the court toes the thin procedural issue, its ruling could be significant, Mello said.

The court's liberal bloc was particularly active in quizzing Carolyn Snurkowski, the deputy assistant attorney general arguing for the state that Hill's claim should be denied.

Justice Ruth Bader Ginsburg asked why there are no regulations to ensure Florida is using the same method of lethal injection in each case.

Justice Stephen Breyer asked why the state hasn't explored either altering its lethal drug combination or having a doctor monitor the patient's pain. "Now that doesn't seem too difficult," Breyer said.

The justices appeared openly split on one issue: whether the state or the defendant must introduce a proposal for a less painful method of execution.

Scalia seemed to chide Doss for not proposing an alternative, while the liberal bloc couldn't fathom how inmates could be more responsible than government in finding a humane method of execution.

Several justices also questioned why Florida lawmakers have passed a law that prohibits the use of the state's execution drugs in euthanizing pets, but allows its use in executions of people.

"Your procedure would be prohibited if applied to dogs and cats," Justice John Paul Stevens told Snurkowski.

A decision in Hill's favor could launch court arguments that would build a record for the high court to one day decide whether lethal injection is constitutional, observers say.

"What I find most encouraging about it is the willingness of what sounds like more than a bare majority of the justices to take a hard and honest and clear-eyed look at this," Mello said.

A decision is expected this summer.

[Last modified April 27, 2006, 03:15:56]