The U.S. Supreme Court is expected to rule this summer on whether commonly used lethal-injection procedures violate protections against cruel and unusual punishment.
The court heard arguments this month from two condemned Kentucky inmates claiming the risk of extreme pain brought by the state’s three-drug cocktail and administration procedures violated legal protections against cruel and unusual punishment.
Members of an Arizona committee formed to help handle a glut of pending death-penalty cases in Maricopa County are not sure what to expect, but they are certain executing inmates by injection will survive the scrutiny.
“It’s very unlikely that the court will rule that lethal injection is cruel and unusual,” said Arizona Supreme Court Justice Michael Ryan, who heads the state’s Capital Case Oversight Committee. “What I think they are going to do is try to set up a test.”
The test, Ryan believes, will be created for lower courts to evaluate the constitutional claims against the drugs used for execution, including how they are administered, by whom, and whether doctors are on the scene to supervise procedures.
The nation’s highest court has not ruled in the past 100 years on the constitutionality of the execution technique or which legal standard should be used to resolve questions of whether the method violates Eighth Amendment safeguards against cruel and unusual punishment.
As a result, lower courts have adopted a “haphazard flux” of standards to determine whether execution means are unconstitutional, ranging from “wanton infliction of pain,” “excessive pain,” “unnecessary pain,” “substantial risk,” and other degrees, according to the U.S. Supreme Court.
The method in question in Baze v. Rees, is used by most, if not all, states that execute by lethal injection. During the procedure, inmates are first rendered unconscious with sodium thiopental and then given pancuronium bromide to paralyze the body.
Opponents of the process argue that if the first agent is not administered properly or wears off too quickly the muscle relaxant will effectively trap a conscious-but-unresponsive inmate into suffering in agony while the third chemical, potassium chloride, stops the heart.
“This is more of a ‘how-to’ then a ‘whether we should,’” said Martin Lieberman, the head of the State Capital Post-Conviction Public Defender Office. Post-conviction appeals typically are used to determine whether an inmate’s lawyer erred or to introduce new evidence or changes in law that might have been made since the inmate’s trial.
Challenges to the constitutionality of lethal injection are often leveled at the post-conviction appeals stage, and Lieberman said his office forcefully argues the claim on behalf of inmates.
But the court’s ruling could put a damper on just how hard those claims are made, he said.
“If they say this claim is not even an Eight Amendment issue, then we won’t pursue it as aggressively as we would otherwise,” he said. “We might (still) pursue it because the Supreme Court has changed its mind in the past, and so you have to raise every arguably meritorious issue.”
Lieberman, said he’s “anxious,” for a Supreme Court ruling to see what effect, if any, it will have on Arizona’s death-row inmates.
His office currently represents two death row inmates, Frank Anderson and Richard Glassel. Anderson was sentenced to die in 2000 for cutting the throat of a 15-year-old boy and driving the knife into his skull. Glassel was handed down the same punishment in 2003 for opening fire on a homeowners’ association meeting, killing two and injuring three.
Lieberman, a veteran defense attorney and an opponent of capital punishment, does not believe the Supreme Court will stop executions in Arizona, but he does question why states are so reluctant to replace the three-drug cocktail.
“Vets (veterinarians) won’t even use this when they put down animals,” he said.
But Kent Cattani, the Arizona attorney general’s chief capital attorney, wonders why a change would be necessary when nothing is wrong in the first place.
“I’ve witnessed an execution and looked at their (Arizona Department of Corrections) protocol,” he said. “There doesn’t seem to be anything cruel and unusual about it. It seems to me the state is just trying to carry out the law in the most reasonable way possible.”
The actual process carries little risk of error, he said, noting it would be easy to tell if the first drug administered was not having the desired effect — the inmate would remain conscious.
If anything, finding a usable vein on an inmate can present initial difficulty, Cattani said, especially if the prisoner had a history of intravenous drug use.
And there are other questions raised by the Supreme Court appeal, he said, such as whether using the second paralyzing agent is appropriate to make an inmate’s death appear “more dignified,” when the process would be faster if the second drug was skipped altogether.
“The question is just how broad this ruling will be,” he said. “We’re primarily interested in whether they (the justices) will discuss whether there is a requirement for a less-painful alternative or whether the standard is simply the state can’t engage in wanton infliction of pain.”
The Supreme Court’s decision in September to hear Baze v. Rees effectively postponed executions across the country, including one for Arizona inmate Jeffrey Landrigan, whom the Arizona Supreme Court ordered to be put to death on Nov. 1.
In 1989, Landrigan killed a male lover in Phoenix after Lundrigan escaped from an Oklahoma prison where he was serving sentences for a 1982 murder and a prison stabbing years later.
He would have become the second Arizona death-row inmate executed in 2007. In May, Robert Comer was put to death for a 1987 murder at a campground near Apache Lake.
Arizona’s death row holds 114 prisoners, according to the Department of Corrections, and its ranks will continue to grow as a staggering amount of capital cases are pending in Maricopa County Superior Court.
On Jan. 16, the Capital Case Oversight Committee, on which Ryan, Lieberman and Cattani serve, met to address the issue at the Arizona Supreme Court building.
James Logan, director of the Maricopa County Office of Public Defender Services, gave members of the committee the current tally of pending capital murder cases in the county: 126, with an additional two or three on the way.
That figure is 10 fewer than what was reported in March, but Logan said the current number could continue to increase quickly.
“It just comes and goes because you can go awhile without a first-degree murder and then have three in a weekend,” he said.