- The Washington Times - Thursday, April 17, 2008

The Supreme Court yesterday upheld Kentucky’s use of lethal injections for death-row inmates in a 7-2 vote, describing the process as “more humane” and ending a national halt on executions.

The decision prompted Virginia Gov. Tim Kaine yesterday to lift his state’s moratorium, although Maryland Gov. Martin O’Malley declined to do the same immediately in his state and set the stage for a political fight.

“The firing squad, hanging, the electric chair and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection,” wrote Chief Justice John G. Roberts Jr. in the majority opinion. “The Constitution does not demand the avoidance of all risk of pain in carrying out executions.”

Justice Roberts said there was no evidence to show that the 36 states that currently use the three-drug system of lethal injections, along with the federal government, had subjected inmates to needless pain when they were put to death.

Joining Justice Roberts were Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Samuel A. Alito Jr. The dissenters were Justices David H. Souter and Ruth Bader Ginsburg.

The ruling is a major defeat for death-penalty opponents and ends a seven-month moratorium on lethal injections nationwide that began in September when the high court took the Kentucky case.

Opponents had argued that the three drugs used to render an inmate unconscious, then paralyze him and finally induce a heart attack — sodium pentothal, pancuronium bromide and potassium chloride — constituted cruel and unusual punishment if not properly administered. The drugs have been used in more than 1,000 lethal injections.

Justice Ginsburg, in writing the minority opinion, said it was “undisputed” that the second and third drugs used in Kentucky’s lethal injection protocol would cause “a conscious inmate to suffer excruciating pain” if not properly administered.

“Kentucky’s system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial,” she said. “I would not dispose of the case so swiftly given the character of the risk at stake.”

Justice Roberts’ majority opinion, however, did not close the door to future lethal injection challenges. He said that although Eighth Amendment guarantees had accommodated more humane methods of execution, lawmakers could take any steps they deemed appropriate “to ensure humane capital punishment.”

Maryland has a de facto moratorium on capital punishment because of a ruling in late 2006 by the state’s highest court. The Court of Appeals ruled that the state’s protocol for the lethal injection procedure was implemented without proper approval by a legislative committee.

Executions can’t resume until the O’Malley administration submits new rules for the committee to approve, an action that he has delayed, saying he would like to give lawmakers a chance to repeal capital punishment.

“I feel that one of the big variables out there has been resolved,” Mr. O’Malley, a Democrat, said yesterday, adding that he plans to wait until the completion of a death penalty study due in December, the third of its kind in the past six years, before making any decisions. Death penalty opponents withdrew a proposal last month to repeal the state execution law, after it became apparent that the measure would not pass the state Senate.

In a letter to Mr. O’Malley, state House Republicans said yesterday that with the Supreme Court ruling, the governor has “lost an excuse to withhold issuing new regulations.”

“He should follow the lead of his colleague in Virginia and end his de facto ban on this constitutionally passed law,” said House Minority Leader Anthony J. O’Donnell, Southern Maryland Republican.

Minority Whip Christopher B. Shank, Washington County Republican, said Mr. O’Malley “has no authority to suspend a constitutionally passed law.”

Things went smoother in Virginia, where Kaine spokesman Gordon Hickey announced within hours that “in light of the Supreme Court ruling, executions will move forward according to the procedures that were in place prior to the court’s agreement to hear” the Kentucky case.

On April 1, Mr. Kaine issued a stay on the execution of Edward Nathaniel Bell and halted all other scheduled executions until the Supreme Court issued its ruling.

Richard Timbrook, whose son, Winchester police Sgt. Rick Timbrook, was fatally shot by Bell in 1999, said yesterday that he was “very happy with the ruling.” Bell fatally shot Sgt. Timbrook, 32, in the forehead during a foot chase. The police officer’s son was born two months later.

“When he takes his last breath, I don’t know what I’ll feel,” Mr. Timbrook said yesterday. “That night, on October 29, Bell literally destroyed our life. … The pain will never go away. Him dying will not affect that in any way.”

Maryland has executed just five criminals in the past 30 years, while Virginia maintains the nation’s second-most active death house, putting 99 inmates to death since 1976. Five murderers sit on Maryland’s death row, while Virginia’s houses 20. About 3,350 inmates are on death row across the country.

In the Kentucky case, Ralph Baze and Thomas Bowling were convicted in separate double murders and sentenced to death.

Baze killed a Kentucky County sheriff and a deputy in 1992 who were attempting to serve him with felony warrants, both of whom were shot in the back. Bowling killed a Lexington, Ky., couple and injured their infant son in 1990 after a traffic accident in a parking lot.

The California-based Criminal Justice Legal Foundation, which filed a friend-of-the-court brief in the case, called the ruling “encouraging.” It said the court correctly held that a small possibility of an error during the injection process was not sufficient to render Kentucky’s protocol unconstitutional.

“Today’s decision should put an end to the de facto moratorium on the death penalty caused by legal challenges to this method of execution,” said the foundation’s legal director, Kent Scheidegger.

Baze and Bowling acknowledged in their challenge that lethal injection, if applied as intended, would result in a humane death but argued that the injection protocol was unconstitutional and constituted “cruel and unusual punishments.”

But Justice Roberts said that Kentucky’s injection procedure complied with the constitutional requirements against cruel and unusual punishment and that Baze and Bowling had not proven that the “risk of pain from maladministration of a concededly humane lethal injection protocol” was either cruel or unusual.

Tom LoBianco and Seth McLaughlin contributed to this report.

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