"THIS IS AN EXECUTION, NOT SURGERY"

Earlier this week, the U.S. Supreme Court heard oral arguments on the appeals by two Kentucky death row inmates who claim that death by lethal injection violates the Constitution's protections against cruel and unusual punishment because that method of execution causes the condemned to suffer excruciating pain. Pending executions were put on hold nationwide when the Court agreed to hear the Kentucky cases. The Court is expected to hand down its ruling sometime this coming summer.

The lethal injection method used by most death penalty states consists of three drugs administered in succession. The first is an anesthetic which puts the prisoner to sleep. The second is a paralytic which paralyzes the lungs and other muscles. The final drug causes the heart to stop.

The appellants argued that, because the professional associations for doctors and nurses prohibit their participation in any executions, the lethal drug cocktails are administered by unqualified correctional employees. They argued that the drugs are often injected or mixed incorrectly so that the prisoner will not be unconscious during the execution process. Thus, the prisoner would be subjected to an excruciatingly painful death because the paralytic drug would prevent him from calling attention to his plight.

The federal government and several states argued that the method of lethal injections as used by Kentucky and the other death penalty states did not constitute cruel and unusual punishment and should be allowed to proceed. They argued that if the Court were to rule in favor of the Kentucky death row inmates, it would lead to an avalanche of never ending appeals which would tie up the state and federal court systems for years.

As usual in such cases, the Justices challenged the lawyers' arguments with their own comments during the presentation by both sides. The most enlightened comment came from Justice Antonin Scalia when, frustrated by the argument about using unqualified correctional employees, he told the appellants: "This is an execution, not surgery."

Why were the two Kentucky appellants sitting on death row? One of them was convicted of shooting to death a couple sitting in their car. The other one was convicted of shooting to death a sheriff's deputy who was trying to serve him with a warrant.

The Court can hand down one of three rulings. It can uphold the Kentucky death sentences, thereby ending the current nationwide moratorium on executions. It can rule in favor of the appellants, thereby abolishing any executions by the current lethal injection method. It can remand the cases back to the trial court for further examination, thereby extending the moratorium for many more years.