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Justices: Does lethal injection hurt?

Stevens says drug combo would be banned for cats and dogs

From Bill Mears
CNN

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Justice John Paul Stevens says the lethal injection combo wouldn't be used on cats and dogs.

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Supreme Court
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Justice and Rights

WASHINGTON (CNN) -- The Supreme Court expressed concern Wednesday that the chemical cocktail used to execute Florida inmates could cause "excruciating pain" in violation of the Constitution's ban on cruel and unusual punishment.

The justices, using a narrow legal argument about how inmates can file last-minute appeals, delved into the larger question of the execution method used in all but one of the 38 states with capital punishment.

"Your procedure would be prohibited if applied to cats and dogs," Justice John Paul Stevens told a lawyer arguing for Florida.

Lawyers for Clarence Hill, who murdered a police officer, argued the drugs could fail, leaving him conscious but paralyzed and unable to express his pain while strapped on a gurney. The state claimed its execution methods have been used the same way many times, and that Hill raised his claims too late in the appeal process.

The issue has been closely watched around the country. Appeals challenging the execution method have led to stays of executions in three states, while other death sentences have been allowed to proceed.

In California, Michael Morales was spared the death sentence indefinitely in February when the state could not find medical professionals willing to be on hand for the execution. But last week in North Carolina, Willie Brown was put to death after a judge ordered a brain-scan monitor attached to measure his level of consciousness.

In Florida, Gov. Jeb Bush has postponed all pending executions until the Supreme Court rules.

Scalia: Not as painful as hanging

Several justices appeared deeply skeptical of the arguments presented by Carolyn Snurkowski of the Florida attorney general's office, who seemed flustered by the barrage of questions.

"Doesn't the state have some minimal obligation to do some research to use the most humane method?" asked Justice Anthony Kennedy, who could prove a swing vote in this case.

Justice Stephen Breyer said "it doesn't seem too difficult" to find the right chemical combination to avoid pain.

But Justice Antonin Scalia said lethal injection is certainly less painful than hanging, which sometimes resulted in decapitation or slow strangulation.

Lethal injection in Florida and most states involves a three-step process: sodium pentothal to stop the pain, pancuronium bromide to paralyze, and potassium chloride to trigger a fatal heart seizure.

"We are not challenging lethal injection in general. We are challenging the particular method that Florida has chosen to use within their discretion," said Hill's lawyer, Todd Doss.

Other state methods of execution besides injection include the electric chair, the gas chamber, hanging, and firing squad. The federal government uses only lethal injection. Only Washington state continues to use the gallows as a method of execution, and only if the condemned requests it, according to the Death Penalty Information Center.

Hill was sentenced to death for the 1982 killing of Pensacola police officer Stephen Taylor. Hill and another man had just robbed a bank when he was confronted by Taylor and his partner. In the struggle, Taylor was fatally wounded.

Escaped execution twice

Hill, 48, had been scheduled to die January 25, and one of his lawyers accompanying him to the death chamber said his client was strapped to a gurney with intravenous tubes attached, ready for the injection, when Justice Kennedy issued a temporary stay.

The other justices agreed the next day to review the case.

Hill's attorneys also claim he is mentally retarded, but the high court did not take up that aspect of his appeal. The Supreme Court barred the execution of mentally retarded prisoners in 2002.

Hill had been scheduled to be the 61st Florida inmate put to death since capital punishment was restored by the high court in 1976. He escaped a scheduled execution in 1989 when courts allowed further appeals.

The high court has never decided the larger question of whether lethal injection is constitutional, and the justices will not decide that issue here. The narrow legal questions deals with whether Hill can make a last-minute claim on the method of execution, and whether he can properly claim a civil rights violation.

A victory for Hill would allow him to challenge Florida's execution procedures as cruel and unusual punishment, and it could force the justices to someday confront the fundamental question of whether lethal injection is unconstitutional. If the court rules against Hill, his execution probably would occur this summer.

A ruling is expected by late June.

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