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High Court Upholds Kentucky's Execution Injections

STEVE INSKEEP, host:

The Supreme Court has upheld Kentucky's method of execution by lethal injection. The justices say the state's use of a three-drug combination does not violate the Constitution's prohibition against cruel and unusual punishment. It is Constitutional in Kentucky. NPR's Ari Shapiro has been reviewing the high court's opinions, and joins us now to discuss them. Good morning, Ari.

ARI SHAPIRO: Morning, Steve.

INSKEEP: Does this affect a lot more than Kentucky - other states that have lethal injection, too?

SHAPIRO: Yeah. This three-drug protocol was in use in more than 30 states and the federal government. And so, executions had been on hold since September, when the court decided to take this case. The case involved some prisoners on death row in Kentucky, and they essentially said that if wrongly administered, this three-drug cocktail has the potential to cause enormous pain and suffering. The drugs induce unconsciousness and paralysis and then cardiac arrest. And they said if you don't administer enough of the unconsciousness drug, then the paralysis drug can prevent you from displaying the signs of the immense pain and suffering that you may experience…

INSKEEP: So even if you show no signs of it, you could be in terrible pain.

SHAPIRO: Right. Exactly.

INSKEEP: That was the argument, anyway.

SHAPIRO: Yeah. And as I mentioned, Kentucky's system is widely used, and so this had major ramifications across the country.

INSKEEP: And so, what did the judges have to say, then?

SHAPIRO: Well, they said that it's okay. And they were a very divided court. We had seven opinions this morning from the nine justices. And the governing opinion came from Chief Justice John Roberts. He said the risks of giving someone the wrong dosage are not so substantial or imminent as to amount to a Eighth Amendment violation. The Eighth Amendment, of course, prohibits cruel and unusual punishment. And he noted that the Supreme Court has never ruled that a particular execution technique is cruel and unusual punishment. But even so, the techniques of execution have become progressively more humane as lawmakers have acted. So we go from firing squad, to hanging, to electric chair, gas chamber, to today's lethal injection. And he essentially suggested, you know, if lawmakers think lethal injection is cruel and unusual, they can take action.

INSKEEP: If I can understand this, are they saying that no one is denying that if this three-drug protocol or cocktail is administered in the wrong way, that it could be painful? No one denies that, that…

SHAPIRO: That's right. The question is how substantial is the likelihood that it will be administered in the wrong way?

INSKEEP: And the high court says not such a big risk.

SHAPIRO: Well, at least in Kentucky it's not. Roberts noted that in Kentucky, there are safeguards in place to make sure this doesn't go awry. It's possible that in other states with lesser safeguards, there could be another challenge. But at least the three-drug protocol on its own is okay, according to the Supreme Court this morning.

INSKEEP: Is it significant you've got nine justices, seven different opinions here?

SHAPIRO: Yeah. There was a really explicit argument here among the opinions. And the argument focused less on the three-drug cocktail and more on the death penalty itself. So, for example, you had Justice John Paul Stevens, who joined in the conclusion about Kentucky, but he essentially argued it's time for the death penalty to go. He said current decisions to retain the death penalty as a part our law are the product of habit and inattention rather than an acceptable, deliberative process. I then you've got Justice Antonin Scalia coming back and saying that's flat out wrong. This is endorsed in the Constitution. Execution is mentioned in our founding documents. And so there's all of this back and forth between the justices. At the end, only two justices, Ginsberg and Souter, would have reached a fundamentally different conclusion. They said they would have made sure that Kentucky puts more safeguards in place to guarantee that the prisoner has had enough of the first drug before the second and third drugs take effect.

INSKEEP: There's a bottom line here, I suppose, for some prisoners in Kentucky. Does this mean that Kentucky can go ahead and execute the people who filed this lawsuit?

SHAPIRO: Kentucky, and many other states. We are already getting preliminary reports this morning. For example, in Florida, the State Attorney General Bill McCollum just said that an execution in Florida can now go forward. And, you know, this opinion literally came out just an hour ago, but I imagine that over the course of the day, we'll hear similar statements from other states that have executions pending.

INSKEEP: All right, thanks very much.

SHAPIRO: You're welcome.

INSKEEP: That's NPR's Ari Shapiro, giving us the latest on a Supreme Court decision upholding a method of execution involving lethal injection in Kentucky. You're listening to MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.
Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.