The Kentucky case that has executions on hold around the South and the rest of the nation is being heard by the U.S. Supreme Court.
At issue is whether the "three drug cocktail" method of execution could potentially cause excruciating pain during death. If the first drug does not fully render the prisoner unconscious, the third drug that kills the prisoner can cause excruciating pain. Adding to concerns about the procedure, the prisoner can't react or alert executioners because he or she is paralyzed by the second drug.
According to the Associated Press, the court is divided. Scalia, Roberts, and Alito signaled they lean toward approving the procedure so executions can resume immediately. Scalia also said that the case shouldn't be sent back to the Kentucky courts for further study because it would lead to a "national cessation of executions" for years and "you wouldn't want that to happen."
Defense experts testified, though, that the procedure isn't foolproof, and in fact isn't even fit for an animal being put down. According to the AP article:
Donald Verrilli, a Washington lawyer who is a veteran of capital cases, offered the court examples of executions in California and North Carolina in which inmates appeared to suffer pain as they were being put to death.
He said the best way to avoid repetition was to switch to a single drug, as veterinarians commonly use in putting animals to sleep.
"The risk here is real," Verrilli said. "That is why in the state of Kentucky it is unlawful to euthanize animals the way" the state executes inmates, he said.
Other concerns include physicians not attending executions, inadequate training and qualification of executioners, and flawed procedures such as were found in Tennssee's execution manual, which instructed executioners on operation of various electric chair components and to have fire extinguishers on hand during the lethal injection.
The most startling statement of all, however, was again from Scalia, who said "There is no painless requirement" in the Constitution.
While the court's assertion that there's no right to vote in the Constitution is debatable, and claims by the administration who stacked the current court that there's no right of habeas corpus are laughable, the Constitution seems pretty clear on "cruel and unusual punishment." But now that we are OK with torture, maybe that's no longer operative?