The U.S. Supreme Court’s deep disagreements over the death penalty were evident yesterday during oral argument on the rights of death row inmates to challenge lethal injection as cruel and unusual punishment, the Washington Post reports. With questions and comments from the justices revealing an even split along liberal-conservative lines, the outcome could depend on Justice Anthony M. Kennedy, the centrist who is the court’s swing voter now that Sandra Day O’Connor has retired.
The court is considering Florida death row inmate Clarence Hill’s contention that the three-drug injection used by Florida, 36 other states, and the federal system risks harsh but undetectable pain. Death row inmates’ attorneys have won stays of execution based on what they say is new medical information showing a risk of great pain if poorly trained personnel mishandle the anesthetic that is supposed to render inmates unconscious. The issue before the court is not whether lethal injection is unconstitutional. It is whether courts should treat a prisoner’s assertion that a particular method of execution is unconstitutional as a civil rights case, as Hill argues, or as a petition for habeas corpus, as Florida says. The question is critical, because Congress has put strict limits on habeas corpus claims but not on civil rights suits.