Court lets inmate pursue appeal on lethal injection

Tuesday, May 25, 2004

The Associated Press

WASHINGTON -- The Supreme Court ruled for the first time Monday that a death row inmate can pursue a last-ditch claim that lethal injection is unconstitutionally cruel.

In a rare unanimous decision on a capital punishment case, justices sided with a convicted Alabama killer who claims his veins are so damaged from drug abuse that executioners might have to cut deeply into his flesh to administer the deadly drugs.

Lethal injection is used in 37 states, largely because it's considered more humane than the electric chair, firing squad, gas chamber or hanging. Criticism of the method has been building, however, and David Larry Nelson's case led to a stark discussion at the court about a so-called "cut-down procedure" needed when problems complicate accessing a vein in an inmate's arm, neck or thigh.

Justices were told in filings by physicians that if done improperly, the procedure could cause Nelson to hemorrhage badly and suffer heart problems before the drug cocktail could kill him.

Nelson is on death row for shooting a man in the back of the head as the man had sex with Nelson's girlfriend on Jan. 1, 1978.

Justices decided Monday that he could use a civil rights law to argue that his punishment would be unconstitutionally cruel unless special precautions were taken.

Justice Sandra Day O'Connor, writing for the court, said the court was not going to "open the floodgates to all manner of method-of-execution challenges. Our holding is extremely limited."

Alabama could end the case, she said, by agreeing to medical alternatives suggested by Nelson's attorneys, such as those used for chemotherapy patients who have small arm veins.

Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center, said despite O'Connor's careful wording he believes the ruling will prompt other death row inmates to follow Nelson's lead.

"With the death penalty, whatever opening there is is going to be tested to the limits. And this is an opening," Dieter said.

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said that while other inmates might have veins damaged from drug use, he does not expect many successful appeals under the court ruling. He also said the decision contains no wording that would indicate the Supreme Court might be ready to limit the use of lethal injections.

The high court never has found a specific form of execution or the practice itself to be unconstitutional. In 1999, justices agreed to consider whether death in Florida's electric chair, known as "Old Sparky," constituted cruel and unusual punishment. They dismissed the case when the state added lethal injection as an option.

Since 1950 most states have moved to lethal injection as the primary means of execution. Only Nebraska still uses the electric chair alone, but the state is facing legal challenges to that.

Lucia Penland, executive director of the Alabama Prison Project, said lethal injection seems innocuous, but "the fact is that it's not a painless process, and it's not without problems."

The case is Nelson v. Campbell, 03-6821.

Also Monday, the Supreme Court:

--Agreed to decide whether a convicted California killer's religious conversion should have been considered by a jury that sentenced him to death. A sharply divided federal appeals court set aside William Payton's death sentence in the 1980 rape and stabbing death of a woman, a decision that California officials said "jeopardizes the validity of numerous death penalty cases in California."

--Turned down an appeal from a Georgia inmate whose lawyers had urged the court to clarify its 2002 ruling that banned execution of mentally retarded people. Justices could have used the case of Alphonso Stripling to settle how much proof of retardation death row inmates must show to avoid the death penalty.


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