Supreme Court OKs lethal injection

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

Virginia immediately lifted its moratorium; Oklahoma and Mississippi said they would seek execution dates for murderers, and other states were ready to follow after nearly seven months without an execution in the U.S.

By a 7-2 vote in a Kentucky case, the court rejected a constitutional attack on the main method of carrying out the death penalty.

The case decided Wednesday was not about the constitutionality of the death penalty 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 court's opinion by Chief Justice John Roberts confirmed there is strong support for the death penalty among the justices and an unwillingness to tolerate endless delay.

"We begin with the principle ... that capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out," Roberts wrote. "Some risk of pain is inherent in any method of execution — no matter how humane — if only from the prospect of error in following the required procedure."

Roberts set a high bar for future challenges to carrying out the death penalty. To win a halt to an execution, defense lawyers must show there is a "substantial risk" the prisoner will suffer "severe pain," the chief justice said. And they have yet to show such evidence, he said.

Agreeing with Roberts, Justice Samuel Alito added a note to say the court should not allow "litigation gridlock" to "produce a de facto ban on capital punishment." Justice Anthony Kennedy also agreed with Roberts.

Justices Clarence Thomas and Antonin Scalia said they would go further and reject all challenges to an execution method unless it is "deliberately designed to inflict pain."

Despite the lopsided outcome, a split remains on capital punishment. Death-penalty cases that come before the Supreme Court often are decided by a 5-4 vote.

Justice John Paul Stevens, who will be 88 Sunday, said his three decades on the court have convinced him the death penalty should be ended.

Nonetheless, he voted with Roberts to reject the challenge to lethal injections, since there was no evidence that Kentucky's approach is badly flawed. Justice Stephen Breyer agreed for much the same reason.

Justices Ruth Bader Ginsburg and David Souter stood alone in dissent. They said they would maintain the hold on executions because Kentucky "lacks the basic safeguards" to ensure the inmate dies a painless death.

The ruling won't have a quick impact in Washington state, even though one death-row inmate has a May 15 execution date. That's because Darold Stenson hasn't exhausted all his appeals. An execution isn't expected before October at the earliest.

Since the 1970s, the 36 states that carry out the death penalty, including Washington, have switched to lethal chemicals. Most rely on a three-chemical cocktail that includes an anesthetic, a paralyzing drug and a heart-stopping chemical.

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 drug, a paralytic, would render the prisoner unable to express 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.

The court issued its decision the same day it heard arguments in another closely watched death-penalty case, a challenge to Louisiana's application of capital punishment for the crime of child rape. The two men on Louisiana's death row for raping girls are the only two people in the country who have been sentenced to death for a crime that did not result in death.

Material from the Los Angeles Times, The Associated Press and The New York Times is included in this report.