WASHINGTON – Ralph Baze has been convicted of killing two law enforcement officers in cold blood and sentenced to death. The U.S. Supreme Court now must ensure that Kentucky executes him in a constitutionally humane way.

What that means is open to debate. On Monday, the justices will consider the fate of Baze and 3,340 other inmates who are facing lethal injection nationwide. It’s the most consequential death penalty case in recent years. It’s also more subtle than it may appear.

“This case presents a lot of very complex issues,” said Elisabeth Semel, the director of the Death Penalty Clinic at the University of California, Berkeley School of Law.

Baze and another convicted murderer, Thomas C. Bowling, are challenging Kentucky’s method of executing death-row inmates with a lethal blend of three drugs. Neither man is a very sympathetic plaintiff. Baze shot a sheriff and deputy in the back with an assault rifle when they arrived to serve fugitive arrest warrants. Bowling shot a married couple in front of their 2-year-old child.

Both men argue that an imperfectly administered drug mixture exposes prisoners to the possibility of deceptively painful deaths, violating the Eighth Amendment’s ban on cruel and unusual punishment.

“They are going to appear serene and tranquil and peaceful and comfortable, regardless of whether in fact they are awake and in agony,” anesthesiologist Dr. Mark Heath testified.

The death penalty isn’t directly at stake in the case, called Baze v. Rees. Neither is lethal injection; the general method can survive, even if the inmates win. Rather, the court could compel states to come up with a different combination of drugs or impose stricter procedural requirements on execution teams.

More broadly, Baze v. Rees will shape what standard courts use to decide future Eighth Amendment challenges. The case already has had a short-term effect, as judges have delayed executions in Texas, Mississippi, Georgia and other states in the three months since the Supreme Court agreed to consider Baze’s challenge.

The death-row inmates want punishments banned if they pose an “unnecessary risk” of pain and suffering. They think the current lethal injection procedures flunk this standard.

Kentucky, allied states and the Bush administration argue that punishments should be banned only under the higher standard of a “substantial risk” of causing pain and suffering.

“Some risk of pain is inherent in any method of capital punishment,” Solicitor General Paul Clement argued in a legal brief.

The court previously has declared that the Eighth Amendment prohibits “unnecessary and wanton” infliction of pain, as well as measures that conflict with society’s “evolving standards of decency.” As often happens, this latest case could come down to Justice Anthony Kennedy, who authored a 5-4 opinion in 2005 banning the executions of juvenile offenders, reversing his earlier support for such executions.

Lethal injection is used in 35 of the 36 states that impose capital punishment; Nebraska, the one exception, still relies on electrocution. Most lethal-injection states use the same three-drug mixture that Kentucky uses.

Seventeen of these states, including Texas, Florida and Idaho, have weighed in on Kentucky’s behalf.

“The present-day consensus is near unanimous in favor of Kentucky’s lethal injection methodology, (so) by any measure the protocol is well within the range of punishments permitted by the Eighth Amendment,” Texas Attorney General R. Ted Cruz wrote for the 17 states.

First concocted in Oklahoma in 1977, the standard lethal injection mixture entails three shots in succession.

One drug, pancuronium bromide, paralyzes the inmate. This “eliminates convulsions and thus provides a dignified death to the inmate and witnesses to the execution,” Kentucky’s attorneys argue in legal briefs. Put another way, the drug-induced paralysis “protects the witnesses from watching an unpleasant death, but also masks the ability … to know whether the inmate is experiencing searing pain or conscious suffocation,” according to a brief filed by Berkeley’s Death Penalty Clinic and its associate director, Ty Alper.

Another drug, sodium thiopental, is an anesthetic now rarely used in hospitals. A third drug, potassium chloride, stops the heart. Taken together, the drugs ensure that death-row inmates will die in a “relatively humane manner,” Kentucky’s attorneys argue.

Administered improperly, inmates’ attorneys respond, the drug combination can become tantamount to torture.

In December 2006, for instance, Florida murderer Angel Diaz took 34 minutes to die because of botched procedures. A subsequent state investigation concluded that it was “impossible” to know whether Diaz was in pain, even though 12-inch chemical burns were later found on both of his arms. In January 1992, in an execution overseen by then-presidential candidate Bill Clinton, Arkansas witnesses heard convicted murderer Ricky Rector moaning in apparent pain while a five-man execution team tried for 50 minutes to find a vein.

“Kentucky’s haphazard and ill-considered lethal injection procedures exacerbate the risk that some condemned prisoners will suffer an excruciating death,” Frankfort-based attorney David M. Barron argued in his legal brief for Baze and Bowling.

As a technique, lethal injection reflects the ongoing search for a clean-cut method for killing criminals. The guillotine, for example, was conceived as a humane replacement for the ax, the sword and more gruesome methods such as burning at the stake. Electrocution was “devised for reaching the end proposed as swiftly and painlessly as possible,” Justice Oliver Wendell Holmes Jr. noted in 1901.

Officials later scrapped the electric chair following episodes such as the March 1997 electrocution of Florida murderer Pedro Medina, in which witnesses reported seeing smoke and flames shoot out of the helmet covering Medina’s head.

The Supreme Court, though, has rarely ruled on a specific method of execution. In an 1878 case involving a Utah murderer, the court upheld the use of firing squads. One hundred and twenty-six years later, Utah banned future firing squads.

(c) 2008, McClatchy-Tribune Information Services.


ARCHIVE GRAPHIC on MCT Direct (from MCT Graphics, 202-383-6064): 20070920 Lethal injection

AP-NY-01-04-08 2111EST

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