WASHINGTON - A quarter-century has elapsed since the U.S. experienced as long a pause in executions as the one the Supreme Court has occasioned with its current examination of lethal injections.
No one has been put to death since Sept. 25 and the earliest that executions are likely to resume is in the summer. Forty-two people were executed in 2007, the lowest total in 13 years. Last month, New Jersey became the first state in four decades to abolish the death penalty.
But when the justices return from their holiday break and hear arguments Monday in a lethal injection case from Kentucky, their questions are unlikely to focus on whether capital punishment or even the method of lethal injection is right or wrong.
The two death row inmates whose challenge is before the court are not asking to be spared execution or death by injection. Their argument, at its most basic, is that there are ways to get the job done relatively pain-free.
So the court could delve into a highly technical, almost medical, discussion of how executions work in practice. The court also will be weighing what risk of pain is acceptable.
Ralph Baze and Thomas Clyde Bowling Jr. were convicted of murder and sentenced to death by juries in Kentucky. The two men, in a 2004 lawsuit, claimed lethal injection as practiced by Kentucky amounts to cruel and unusual punishment in violation of the Eighth Amendment. The state's procedures — similar to those on the books in three dozen states — "create a significant and unnecessary risk of inflicting severe pain that could be prevented by the adoption of reasonable safeguards," their lawyers argue in court papers.
The lawyers say other states routinely botch executions by using poorly trained people, complex procedures and even dim lighting that makes it hard for the executioner to see what he is doing. The procedures in many states are kept secret, making challenges to the procedures difficult.
The state defends its procedures. "Kentucky seeks to execute them in a relatively humane manner and has worked hard to adopt such a procedure," Kentucky Attorney General Gregory Stumbo said.
The Bush administration, backing the state, argues that because the Supreme Court has said capital punishment is constitutional there must be some method for carrying it out.