Skepticism, uncertainty in death penalty review

By MICHAEL DOYLE
and HALIMAN ABDULLAH
BEE WASHINGTON BUREAU

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WASHINGTON -- The Supreme Court revealed sharp death penalty differences Monday as justices weighed Kentucky's lethal injection method for executions.

The court appears destined for another close decision, with several justices suggesting that further litigation should explicitly compare Kentucky's death penalty procedures with alternatives. If questions are clues, death row inmates Ralph Baze and Thomas Bowling could be in court for some time.

"Wouldn't it be better to get (this) one case litigated thoroughly?" Associate Justice Da-vid Souter asked rhetorically. "We want some kind of definitive position here."

Associate Justice Stephen Breyer seemingly agreed, admitting that he was "left at sea" because of key unanswered questions and that justices could "send (the case) back" for further study of execution methods. Neither Kentucky nor the Bush administration wants this to happen.

"There will be endless litigation in a regime where there is no finality," Deputy Solicitor General Gregory Garre warned.

Baze and Bowling, joined by death row inmates in California and other states, argue that the three-drug injection procedure commonly used nationwide violates the Eighth Amendment's ban on cruel and unusual punishment. They aren't challenging the death penalty itself or the concept of lethal injection.

Instead, the death row inmates contend that they're at risk of unbearable agony if the anesthetic, paralyzing agent and heart-stopping drugs are administered improperly.

"The pain that is inflicted here when things go wrong is tortuous," attorney Donald B. Verrilli Jr. told the court.

The court's most conservative justices sounded skeptical, with Chief Justice John Roberts joining Associate Justices Samuel Alito and, in particular, Antonin Scalia in raising doubts about the claims.

"Where does it come from that you must find the method of execution that causes the least pain? Is that somewhere in our Constitution?" Scalia asked rhetorically.

The case, as often happens, could come down to Associate Justice Anthony Kennedy, who didn't tip his hand Monday.

If the justices decide they need more information, a trial court would analyze the three-drug lethal injection procedure compared with proposed alternatives, including a single massive barbiturate overdose.

In California, a legal battle over lethal injection methods has sidelined executions since February 2006. The moratorium was prompted by the case of Michael Morales of Stockton.