WASHINGTON—The Supreme Court appeared split Wednesday over how a lower court should handle a Florida death row inmate's contention that the state's method of lethal injection is unconstitutional because it could cause him great pain.
Clarence Hill, who shot and killed a Pensacola police officer in 1982, has exhausted the appeals regularly afforded to inmates who challenge their sentences. But his lawyers say his complaint about the lethal injection procedure is a civil rights claim that doesn't directly challenge his sentence, just the way it's going to be carried out. The state says essentially that Hill's claim is a ruse, an indirect way back into court to stop the state from taking his life.
Two lower courts have rejected Hill's claims, but that has happened against the backdrop of a mounting national debate over how cruel or humane lethal injection is. Eight executions have been delayed this year to consider the issue, thanks in part to medical studies that suggest some inmates may feel terrible pain when intravenous drugs are used to end their lives.
The debate is laced with a bit of irony: Most states voluntarily abandoned other forms of execution—the gas chamber, electrocution, even hangings—in favor of lethal injection because it was seen as more humane. Florida, in particular, was notorious for its "flaming" electric chair, which set at least one inmate ablaze.
Those states now find themselves defending lethal injection against claims that the drugs used don't always kill painlessly and instead may simply prevent prisoners from writhing or screaming. One brief in Hill's case notes that in Florida, dogs and cats couldn't be put down the way inmates are.
The justices are jumping into the debate on somewhat oblique terms, to decide whether Hill can get a hearing on his claims and under what conditions. The justices so far have declined to get involved in cases that would require them to decide directly whether lethal injection is unconstitutionally cruel.
During arguments, the justices seemed split largely along ideological lines. Several more-conservative justices jumped quickly on Hill's lawyer, D. Todd Doss, pressing him to demonstrate that Hill's claims weren't a delay tactic that could be repeated.
They wondered why Hill hadn't suggested an alternative means for execution.
"So if the state comes up with another means, you can then object to that, too, right?" Justice Antonin Scalia asked. "You could challenge that method, too, so another few years would go by" before the execution.
Doss said he disagreed that there was a risk of "perpetual litigation."
Justice Samuel Alito tried to get Doss to be more specific about his objections: Are they about Florida's procedures or the death penalty in general?
"Is there any method used that's not a violation of the Eighth Amendment?" Alito asked, referring to the constitutional protection against cruel and unusual punishment.
Doss said if the sedatives administered during lethal injection work and an inmate feels no pain, then it would be constitutional.
Scalia focused on Doss' idea of "no pain."
"Is excruciating pain the standard, or any pain?" Scalia asked.
Doss said the court has outlawed executions that inflict "wanton or gratuitous" pain on inmates.
Chief Justice John G. Roberts Jr. quizzed Doss on why Hill's claim was raised just a few days before his execution. Presumably, the procedure was set long before that, Roberts said.
Doss said Florida had no set procedures for lethal injection nor rules to administer those procedures. He said that despite many attempts, he was rebuffed when he asked for information about which drugs would be used during Hill's execution. He found out only at the last minute.
"This is shrouded in secrecy," Doss said.
Carolyn M. Snurkowski, Florida's assistant deputy attorney general, weathered heavy questioning from many of the court's more liberal justices and Justice Anthony Kennedy, a conservative who appeared to hold the decisive vote in the case.
Snurkowski insisted that unless Hill and his lawyers offered an alternative method of execution, Hill's claims shouldn't be treated any differently from routine challenges to his sentence. She said the court's rulings required Hill to offer an alternative.
"What is the legal source for that? What case? What principle?" Kennedy demanded.
Snurkowski pointed to a 2004 high court ruling that allowed an Alabama prisoner to pursue similar claims. In that case, she said, the court relied on the fact that the prisoner had suggested alternative methods.
Justice David Souter objected to that assertion. He said the court mentioned the suggested alternative methods in that case, but didn't hinge the ruling on it. "I don't know what would elevate that to a principle," he said. "I don't know why the state doesn't have the obligation to not execute without causing gratuitous pain."
The case should be decided by late June.
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(c) 2006, Knight Ridder/Tribune Information Services.
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