Will yesterday's Supreme Court decision open the execution floodgates?

The U.S. Supreme Court ruled yesterday that two Kentucky death row inmates had not proven their case that executions by lethal injection posed an unacceptable risk of excruciating pain for the condemned.

The complicated ruling was accompanied by 97 pages of opinion. Despite the 7-2 vote upholding the use of lethal injections in this specific case, opinions expressed by various justices may raise more questions than answers.

While agreeing with the majority opinion, Justice Stevens said for the first time that he believes the death penalty is unconstitutional.

The opinion from Justice Clarence Thomas included a bizarre discussion of gruesome execution methods that he would consider cruel and unusual, but he concluded that lethal injection was not one of them.

As we have discussed previously here at Facing South, the Supreme Court's deliberations on lethal injection had put executions on hold around the South and the rest of the U. S.

Reaction to yesterday's ruling was swift among governors and state attorney generals:

Lexington Herald-Leader:

In Frankfort, Gov. Steve Beshear announced that he will begin signing death warrants "under the appropriate circumstances" and after review.

Kentucky Justice and Public Safety Secretary J. Michael Brown called the ruling a sweeping vindication of Kentucky's protocols. Death penalty supporters and the state argued that lethal injection is the most humane form of capital punishment available.

"This decision upholds the competence and professionalism of our execution protocol, and of the personnel who carry out that protocol," Brown said.

Kentucky Attorney General Jack Conway said he was "gratified" by the decision and that he does not think the system is ripe for more appeals of the lethal injection process.


Within hours of the ruling, the Tennessee attorney general's office was preparing to ask the courts to lift stays of execution on several inmates whose scheduled execution dates passed months ago.

For Tennessee Gov. Phil Bredesen, a death penalty supporter, the ruling came as a validation. "What it means is that the Supreme Court has said, as I've been maintaining for five years, I guess now, is that lethal injection is a legitimate constitutional method of execution," Bredesen said.

Birmingham News:

"It is time to move forward seeking the execution of the guilty for their murderous acts," Alabama Attorney General Troy King said in a prepared statement.
"As attorney general, I will do so."

King did not say when the state will resume executions, although Assistant Attorney General Clay Crenshaw said they likely will resume "very quickly."

Atlanta Journal Constitution:

Just hours after the U.S. Supreme Court ruled that Kentucky's lethal-injection method does not violate the Eighth Amendment's guarantee against cruel and unusual punishment, Georgia Attorney General Thurbert Baker asked that stays be lifted to allow the executions of Jack Alderman and Curtis Osborne.

Jackson Clarion-Ledger:

...Mississippi Attorney General Jim Hood believes the nation's high court on Monday will deny [death row inmate Earl Wesley Berry's] appeal that had been pending, freeing the state to execute him.

"As soon as the Supreme Court enters this order on Monday afternoon, we will file a petition with the Mississippi Supreme Court to set a new execution date to take place within 30 days," Hood said.

Orlando Sentinel

Attorney General Bill McCollum asked the U.S. Supreme Court on Wednesday to allow Florida to proceed with the execution of child killer Mark Dean Schwab, shortly after the high court ruled that lethal injection is not cruel and unusual punishment.

Meanwhile, Gov. Charlie Crist asked for a "very short list" of the worst death-row inmates so he can sign his next death warrant.

Richmond Times-Dispatch:

Virginia Gov. Timothy M. Kaine, who delayed one execution this month and promised to halt others until the court ruled, said yesterday that lethal injections can resume in Virginia.

"The governor will continue to review any clemency requests on a case-by-case basis," said Kaine spokesman Gordon Hickey.

Arkansas and North Carolina are taking a more deliberate approach:

Northwest Arkansas Morning News:

"The governor's office and our office have conversed already this morning, and I think the important thing to do is to read it," McDaniel told reporters when asked about the Supreme Court ruling.

"It's long and complicated, and we want to make sure that we have a full understanding of what the court is saying and how it applies specifically to Arkansas before we make any specific comments about moving forward with those executions that are currently on hold."

WTVD Raleigh:

"We've got attorneys who are studying the ruling and are trying to determine how it may impact North Carolina," said Noelle Talley, a spokeswoman for Attorney General Roy Cooper.

Yesterday's ruling does not resolve other pending legal issues with North Carolina's death penalty, including a conflict between a provision requiring a physician to attend executions and other rules that prohibit physicians from participating.

Some of these reactions are shameful, but not unexpected by lawyers fighting to abolish the death penalty. And even if the Supreme Court had struck down the use of lethal injection, we always seem able to devise plenty of new ways to kill people. Justice Thomas has apparently given it a great deal of thought.