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The death penalty dominated the agenda at the Supreme Court today.
The justices delivered a major decision upholding the most common method of lethal injection. The decision almost certainly clears the way for dozens of executions that have been on hold. Moments after handing down that decision, the court heard arguments in another major death penalty case. It will test whether the death penalty is constitutional for the crime of raping a child.
NPR legal affairs correspondent Nina Totenberg has this report on both cases.
NINA TOTENBERG: Thirty years ago, death by lethal injection was conceived of as a more humane way to execute the condemned. But the three-drug protocol used to first sedate then paralyze and then kill has not changed since then. It's used in all 36 states that have the death penalty, and critics contend that it poses an unnecessary risk of pain and suffering that could easily be avoided with a simple overdose of a barbiturate. Critics point to the fact that veterinarians long ago abandoned the three-drug method in favor of a single-drug protocol for killing animals.
In September, the Supreme Court put a hold on all pending executions while it considered whether lethal injection, as currently carried out in Kentucky, is unconstitutionally cruel and unusual punishment. Today, the justices, by a 7-2 vote, said it is not, and in so doing, for all practical purposes, released the hold on dozens of executions. The justices, however, were so divided in their reasoning that no opinion commanded more than three votes.
Chief Justice Roberts, writing for himself and Justices Kennedy and Alito, says that those challenging the Kentucky lethal injection system had not been able to show that there was a substantial risk of pain and suffering.
Nor, he said, was it reasonable to demand that the state adopt a one-drug alternative that had not been tried or tested on humans. The state, he said, had sufficient safeguards to ensure that the prisoner would be adequately sedated so that he would not feel the pain of the next two chemicals. What's more, said Roberts, a condemned prisoner cannot successfully challenge one method of execution simply because there are marginally safer alternatives.
Two other justices, Scalia and Thomas, said no method of execution is unconstitutional unless the state intentionally inflicts torturous pain. Justices Breyer and Stevens also wrote separate opinions. Stevens, after 33 years on the court, said for the first time that he's come to believe that the death penalty is unconstitutional, but that because the court has ruled otherwise, he feels constrained to follow those rulings.
As to the three-drug cocktail, he said, states could easily reduce the risk of future litigation by eliminating the second drug - a paralytic - that prevents the condemned prisoner from indicating any pain if it occurs.
Dissenting were Justices Ginsburg and Souter, who suggested that Kentucky's safeguards are not enough to prevent an easily avoidable risk of pain and suffering in execution. Just what today's ruling means in terms of practical consequences is not entirely clear. Justices Stevens and Thomas, for example, both predicted an avalanche of litigation on protocols in other states. And indeed, death penalty opponents believe they see plenty of daylight in today's ruling.
Fordham Law Professor Debra Denno.
P: Even though states use comparable chemicals, their protocols really do differ, and the protocol and how these executions are carried out also differ.
TOTENBERG: Donald Verrilli, who represents the challengers in the Kentucky case, notes that in Kentucky there had been only one execution, whereas in other states, there have been 50 or 100 or more.
NORRIS: If one looks at the records established there, what one finds is that the problem is not so much with the written protocols, which at least on their face seem reasonable, but on the fact that states don't seem to pay any attention to the written protocols when they actually carry out the executions, and they carry out the executions in haphazard manner. And with a record like that, it seems to me you're going to have a far different case than the case you had in Kentucky.
TOTENBERG: Columbia University Law School Professor Michael Dorf, however, sees a newly energized conservative majority on the current Supreme Court that is unlikely in the long run to invalidate the three-drug method of lethal injection.
P: This court as currently configured is not about to strike down a state's method of execution if it looks more or less like Kentucky's.
TOTENBERG: Some of the court's conservatives sent out similar pro-death penalty signals today at oral argument in another death penalty case - this one testing whether it's constitutional to execute a person for the non-homicide rape of a child.
In 1977, the Supreme Court invalidated the death penalty for the rape of an adult woman, and it's been 43 years since anyone's been executed for rape. Now, however, six states have enacted laws that permit execution for child rape, and two men are on death row, both in Louisiana.
Representing Patrick Kennedy - sentenced to death for raping his stepdaughter - lawyer Jeffrey Fisher(ph) argue that Louisiana's law is unconstitutional because it treats all child rapists as eligible for the death penalty, and gives juries no guidance to pick out the worst. Indeed, even an 18-year-old who has consensual sex with a 12-year-old qualifies for the death penalty.
J: Our jurisprudence only requires narrowing the death penalty in the most heinous crimes. Isn't the rape of a child under 12 enough? Answer: In the 1977 case, the victim was 16, the rapist had been convicted three times before for rape, he was an escaped prisoner, and the crime was committed in the course of a kidnapping. And still, that wasn't enough. Pressed further by Scalia, Fisher said, to qualify for the death penalty, the prosecution would have to show that a rape was worse than killing someone.
Chief Justice Roberts then focused on Fisher's assertion that there's no showing of a national trend to enact such laws, and that the Louisiana law is thus unconstitutionally cruel and unusual under the standard set forth in previous Supreme Court decisions.
The trend, asserted the chief justice, has been more and more states passing capital punishment laws for non-homicide crimes. And if you knock them down one by one, there never will be a trend. After much back and forth, lawyer Fisher pointed out that there are five times as many people charged with child rape in Louisiana as are charged with murder, but only two convicted rapists have been sentenced to death. That, he suggested, is the kind of freakishly wanton imposition of the death penalty that the Supreme Court has said is unconstitutional.
Representing Louisiana, Assistant District Attorney Juliet Clark said this was an extraordinarily brutal rape requiring surgery to the child's genitalia.
J: Were the injuries permanent? Answer: No. They healed.
J: If we open the door to the death penalty for non-homicide crimes, states will start allowing it for all kinds of crimes, things that are very serious, but do not involve death.
J: Just the way it used to be.
J: Perhaps 200 years ago that was true.
Last to argue was Texas Solicitor General Ted Cruz, representing other states that have death penalty laws for child rape. Justice Kennedy, who may well be the deciding vote in this case, focused his questions on how Louisiana's law could be narrowed. Cruz said that Texas and three other states to have enacted laws most recently require the rapist to have previous convictions for raping a child. States, he said, could also require a particularly heinous crime or multiple victims.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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