By Sheli DeNola
When death row inmates Ralph S. Baze and Clyde Bowling, Jr. refused to select a method of execution and were subsequently relegated to death by lethal injection, the decision spurred a heated legal battle that the U.S. Supreme Court will now decide. Although this case deals with the cruel and unusual punishment clause of the Eighth Amendment, many on all sides of the issue ultimately consider it a moral issue.
In 1997, the state of Kentucky convicted Ralph S. Baze of murder and sentenced him to the death penalty for killing Sheriff Steve Bennett and Deputy Arthur Briscoe of Powell County, whom he shot when they attempted to serve him a warrant during a domestic dispute at his home. Clyde Bowling, Jr. was convicted in 1994 for the murder of Edward and Tina Earley and shooting their two-year-old son.
Both Baze and Bowling, Jr. were subsequently sentenced to death.
In 2004 they joined to file a lawsuit against the state of Kentucky, arguing that the method by which lethal injection is administered was cruel and unusual, thus making it unconstitutional.
Justice Donald C. Wintersheimer, the judge presiding over the case in the Kentucky Supreme Court, ruled against Baze and Bowling, Jr., holding the opinion that the plaintiffs were unable to prove that the methodology of execution is cruel and unusual because, under state law, the execution must shock “the moral sense of all reasonable men as to what is right and proper under the circumstances.” In response to the ruling, Baze and Bowling, Jr. appealed, bringing the case to the U.S. Supreme Court.
In the upcoming case named Baze v. Rees, Ralph S. Baze and Clyde Bowling, Jr. must prove that the “procedure for execution creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death.” In addition, they must determine if modern-day societal standards consider lethal injection to be an act of decency.
This question is at the heart of the legal battle.
According to Keith Berge, an anesthesiologist at the Mayo Clinic in Minnesota, the process of lethal injection is indeed cruel because of the repeated steps the person being executed must endure during their last living moments.
“It’s disconcerting,” Berge said. The process, Berge explained, uses an intravenous catheter to inject the prisoner with a cocktail of drugs. First comes the sodium thiopental, which is used to sedate the prisoner, then pancuronium bromide is added to paralyze the muscles, and finally, potassium chloride is administered to stop the heart.
According to Berge, potassium chloride can cause a slight feeling of burning in the veins, but the most “common problem is that when the first two drugs are administered too closely together they tend to clog the vein.” In this instance, the process must be repeated, putting the prisoner through a process that many consider cruel and unusual.
This was the case last year in Florida, when an inmate had to undergo the process twice in 35 minutes.
Lethal injection can also be complicated if a prisoner has a history of habitually injecting drugs into their veins.
This controversy surrounding lethal injection has led many to question whether the process not only violates the Constitution, but also human rights. Among them is Hiroshi Fukurai, a professor of sociology at UC Santa Cruz and specialist in the sociology of law.
“The Constitution was designed to protect basic human rights,” Fukurai said, highlighting the unavoidable ethical question of lethal injection.
Some, however, believe that convicted murderers deserve punishment no matter the method. William Rusty Hubbarth, lawyer and vice president of Justice for All, an organization in support of the death penalty, agrees with them.
“Murder is the ultimate crime, and deserves the ultimate punishment,” Hubbarth said.
As for the controversy over lethal injection, Hubbarth sarcastically commented that prisoners “certainly should not be victimized themselves.”
“As an American and as a lawyer, I am in full support of the Eighth Amendment,” Hubbarth said, referring to the constitutional amendment which protects against cruel and unusual punishment. “Furthermore, I am confident that the Supreme Court will deem lethal injection constitutional.”
In contrast, Natasha Minsker, the director of death penalty policy at the American Civil Liberties Union, said that the organization believes that the “death penalty itself was cruel and unusual and in violation of due process.”
Although this is a constitutional case, many are pointing to the morals that have become characteristic of American identity. For Hubbarth, this is just the case. As he put it, “Morals are variable; many have morals of convenience.”
