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Litigation Assured in Wake of Decision

Published: April 16, 2008

Executions in Texas, Alabama and other Southern states with high death-penalty rates are likely to resume shortly in the wake of the Supreme Court’s decision Wednesday upholding Kentucky’s method of putting condemned inmates to death.

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But the fractured decision may actually slow executions elsewhere in the country, legal experts said, as lawyers for death-row inmates launch fresh challenges based on its newly announced legal standards.

“The decision will have the effect of widening the divide between executing states and symbolic states — states that have the death penalty on the books but rarely carry out executions,” said Jordan M. Steiker, a law professor at the University of Texas.

George H. Kendall, a lawyer with Holland & Knight in New York who is an authority on capital litigation, said the effect of the Kentucky decision, Baze v. Rees, “is going to vary greatly, in part because of the mish-mash of opinions.”

“I bet you by this time next week there will be execution dates in Texas and Alabama,” Mr. Kendall said. “But nothing is going to happen very quickly in California at all.”

Supporters of the death penalty welcomed the decision, though they suggested that it could have been more definitive.

“It’s true that they didn’t completely slam the door and lock it,” said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation. “But I expect that the de facto moratorium will end this year, and in most states executions will resume.”

Opponents of the death penalty said the decision was little more than a road map for more litigation. “I think it opens the door,” said Elizabeth Semel, the director of the death penalty clinic at the University of California Berkeley.

Chief Justice John G. Roberts Jr., in his plurality opinion, said that states with lethal injection protocols “substantially similar” to that used in Kentucky would be immune from challenges under the court’s new standard, which requires death row inmates to prove not only a demonstrated risk of severe pain but also that the risk is substantial when compared to available alternatives.

“Substantially similar?” asked Deborah Denno, a law professor at Fordham whose work was cited by the court. “I’m not sure what that is or what that would constitute.”

Thirty-five states and the federal government use lethal injections in executions, most if not all of them relying on a combination of three chemical: a sedative, a paralyzing agent and a drug that stops the heart. If administered properly, all concerned agree that they produce a humane death. If administered improperly, the second and third chemicals can give rise to intense pain.

Relatively little is known about Kentucky’s procedures for administering the chemicals, Ms. Denno said, adding that other states have much more evidence concerning the risks involved in the administration of the chemicals.

Justices on the court’s left and right wings said the new standard was an invitation to a fresh round of litigation.

“The question of whether a similar three-drug protocol may be used in other states remains open and may well be answered differently in a future case on the basis of a more complete record,” Justice John Paul Stevens wrote.

Justice Clarence Thomas said “today’s decision is sure to engender more litigation” because “we have left the states without a bright-line rule.”

Ms. Semel said the fractured decision, the relatively sparse information available about practices in Kentucky and the new standard announced by the court would produce fertile ground for additional litigation, particularly in states where flaws in the administration of lethal injections were documented.

“If it looks like California or it looks like Missouri or it looks like Tennessee,” she said, “then it’s not a substantially similar protocol to the one in Kentucky.”

Indeed, Ms. Denno said, “attorneys are in pretty good shape for further litigation.” In particular, she said, they may be able to demand that state corrections departments provide them with more information about their execution procedures.

Justice Stevens urged states to consider abandoning one of the three chemicals, the paralyzing drug that would leave an unsedated inmate conscious but unable to move, breathe or cry out. The justices in the plurality said the drug, pancuronium bromide, made executions more dignified and faster, interests Justice Stevens dismissed as inadequate.

“States wishing to decrease the risk that future litigation will delay executions or invalidate their protocols would do well to reconsider their continued use of pancuronium bromide,” Justice Stevens wrote.

No state has so far abandoned the three-chemical combination. And it is not clear whether the Baze decision will make changes more or less likely.

“The court is giving different messages,” Ms. Denno said. On the one hand, Chief Justice Roberts suggested emulating the Kentucky protocol may provide states with a safe harbor. On the other, Justice Stevens said that the paralyzing drug is a litigation magnet.

States that have considered moving to a simpler protocol may have been waiting, some legal experts said, until Baze was decided, so as not to prejudice Kentucky’s chances before the court.

More than 40 stays have been issued in lethal injection cases by various courts, 17 of them since the Supreme Court agreed to hear Baze. Those stays will presumably now be dissolved.

But the litigations will not stop, Mr. Steiker said.

“We will end up largely where we were before Baze,” he said. “It has set us on a course in which there will be continuing challenges, efforts to document botched executions and efforts to continue to explore alternative protocols.”

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