How do you measure whether the pain of an execution is too great? That is essentially the question the Supreme Court will address when, early next year, it hears the case of two Kentucky death-row inmates challenging the state's method of lethal injection. The two men argue that the particular three-drug cocktail used to kill death-row inmates in Kentucky should be considered cruel and unusual punishment.
Their case will be the first time that the Supreme Court has directly looked at the constitutionality of a particular method of execution since 1879, when the justices upheld the use of firing squads. The high court may leave to the state the decision of whether Kentucky's particular method of lethal injection is unconstitutional. But the justices' decision to take on the case indicates they are likely to set a new standard for defining what execution methods are unconstitutional.
Key to the Kentucky case is a question of science. The standard form of lethal injection uses three drugs--the first to stop pain, the second to paralyze the condemned inmate, and the third to stop the heart. The problem comes with drug two: Medical experts testified at trial that there has been a high level of error in this shot, leaving the individual conscious and possibly able to feel the excruciating pain of the third shot. But because the second drug also paralyzes the individual, observers cannot necessarily tell if the person is experiencing any extreme sensation.
Alternatives. This uncertainty, the defendants argue, creates the potential for unjust harm. And, they argue, there is an easy alternative: another combination of drugs that would cause death with less pain.
Kentucky prosecutors and the state trial court have found this evidence unconvincing. And courts across the country have differed over precisely what standard inmates must show: Is the simple evidence of other problems with this drug combination enough to stop using it? Or must defendants show more specific problems in the individual execution?
There's no doubt the court has shown increasing willingness to regulate the reach of the death penalty, striking down its use for mentally ill individuals and for juveniles in recent years.
But the court's involvement may ultimately be a double-edged sword for death penalty opponents. Says Stephen Vladeck, an American University law professor, "Maybe what these cases are is recognition by the center of the court that we are going to have a death penalty but that we have to police it."