WASHINGTON, Jan. 7 (UPI) -- The U.S. Supreme Court heard argument Monday on whether the way lethal injections are carried out is too painful to be constitutional.
At the core of the argument is the three-drug "cocktail" administered by the 37 states that use lethal injections for executions -- Nebraska continues to use electrocution. Since the high court agreed this fall to hear the case, the states have instituted an unofficial moratorium on executions.
In the case before the Supreme Court, two Kentucky death row inmates contend the anesthetic -- the first part of the cocktail -- doesn't render the lethal parts of the execution painless.
The Eighth Amendment to the U.S. Constitution bans "cruel and unusual punishments."
Monday the justices, even those in the liberal bloc, seemed to be more interested in the details of lethal injection than in its constitutionality. Liberal Justice Stephen Breyer spent some time questioning an inmate's attorney on whether a one-drug injection -- 3 grams of anesthetic -- would be lethal as well as painless.
With the rest of the high court divided 4-4 between conservatives and liberals, moderate Justice Anthony Kennedy may provide the deciding vote in the case, as he has in scores of cases through the 1990s and 2000s.
Kennedy also spent much of Monday's argument asking questions about the technical details of lethal injection, not whether lethal injection itself was unconstitutional.
If lethal injection is properly administered, "would you have a case here? Let's assume 100 percent of cases are properly administered."
A lawyer for one of the inmates said there was no way to ensure 100 percent proper administration, but monitoring of the execution by a trained professional -- doctors are forbidden by their ethical code -- would be essential.
The high court should hand down a decision within several months.
(Baze vs. Rees, 07-5439)
