Court OKs lethal injections; executions back on

updated 7:24 p.m. ET April 16, 2008

WASHINGTON - U.S. executions are all but sure to resume soon after a nationwide halt, cleared Wednesday by a splintered Supreme Court that approved the most widely used method of lethal injection.

Virginia immediately lifted its moratorium, Oklahoma said it would seek execution dates for two convicted murderers, and other states were ready to follow.

Voting 7-2, the conservative court led by Chief Justice John Roberts rebuffed the latest assault on capital punishment in the U.S., this time by foes focusing on methods rather than broader questions of legality. Justice John Paul Stevens voted with the majority on the question of lethal injections but said for the first time that he now believes the death penalty is unconstitutional.

The court turned back a challenge to the procedures in place in Kentucky that employ three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.

Death penalty opponents said challenges to lethal injections would continue in states where problems with administering the drugs are well documented.

The case decided Wednesday was not about the constitutionality of the death penalty generally or even lethal injection. Instead, two Kentucky death row inmates contended that their executions could be carried out more humanely, with less risk of pain.

The inmates "have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment," Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.

Roberts also suggested that the court will not halt scheduled executions in the future unless "the condemned prisoner establishes that the state's lethal injection protocol creates a demonstrated risk of severe pain."

States can avoid this risk by using the three-drug procedure approved in the Kentucky case, Roberts said.

Justices Ruth Bader Ginsburg and David Souter dissented.

Executions have been on hold since September, when the court agreed to hear the Kentucky case. The justices stepped in to halt six executions, and many others were put off because of the high court's review.

Executions and death row
Forty-two people were executed last year out of more than 3,300 people on death rows across the country.

Wednesday's decision was announced with Pope Benedict XVI, a prominent death penalty critic, in Washington and the court's five Catholic justices — Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas — headed to the White House for a dinner in his honor. All five supported the lethal injection procedures.

The court separately heard arguments Wednesday on the constitutionality of the death penalty for people convicted of raping children. A decision in that case is expected by late June.

The argument against the three-drug protocol is that if the initial anesthetic does not take hold, the other two drugs can cause excruciating pain. One of those drugs, a paralytic, would render the prisoner unable to express his discomfort.

The Kentucky inmates wanted the court to order a switch to a single drug, a barbiturate, that causes no pain and can be given in a large enough dose to cause death.

At the very least, they said, the state should be required to impose tighter controls on the three-drug process to ensure that the anesthetic is given properly.

NBC video Lethal injection to get Supreme Court review Sept. 25: For the first time in over 100 years, the court will review the use of lethal injection. Pete Williams reports. Nightly News

Ginsburg, in her dissent, said her colleagues should have asked Kentucky courts to consider whether the state includes adequate safeguards to ensure a prisoner is unconscious and thus unlikely to suffer severe pain.

Stevens, while agreeing with Wednesday's outcome, said the decision would not end the debate over lethal injection.

"I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself," Stevens said in an opinion in which he said for the first time that he believes the death penalty is unconstitutional.

Stevens suggested that states could spare themselves legal costs and delays in executions by eliminating the use of the paralytic.

Kentucky has had only one execution by lethal injection, and it did not present any obvious problems, both sides in the case agreed.

But executions elsewhere, in Florida and Ohio, took much longer than usual, with strong indications that the prisoners suffered severe pain in the process. Workers had trouble inserting the intravenous lines that are used to deliver the drugs.

Roberts said "a condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative."

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