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Expert: Hold on executions could continue after Supreme Court rules

Catherine Grosso
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Photo by L. Brian Stauffer
Law professor Catherine Grosso says a historic capital punishment case pending before the U.S. Supreme Court could extend a de facto moratorium that has already halted executions for more than five months.

2/26/2008

Jan Dennis, Business & Law Editor
217-333-0568; jdennis@illinois.edu

CHAMPAIGN, Ill. — A historic capital punishment case pending before the U.S. Supreme Court could extend a de facto moratorium that has already halted executions for more than five months, a University of Illinois death penalty expert says.

A hold on executions that started soon after the court agreed to hear the case last fall will likely continue at least until justices rule, which could come before an August recess, said Catherine Grosso, a law professor who teaches and studies death penalty issues.

But she says death sentences could remain in limbo longer if the court backs a challenge that alleges drugs administered for lethal injection subject inmates to excruciating pain, violating Eighth Amendment rights against cruel and unusual punishment.

“The case has the potential to prolong the de facto moratorium,” Grosso said. “If it establishes a new standard for Eighth Amendment challenges, that will lead to new cases applying the new standard. If it requires new protocols for lethal injection, states will need to develop and approve them. And it’s hard to think there wouldn’t be new challenges to whatever protocol comes next.”

Grosso says the case, filed by Kentucky death row inmates Ralph Baze and Thomas Clyde Bowling Jr., has far-reaching implications, because 36 of 37 states with death penalty laws use a method of lethal injection similar to Kentucky’s.

Baze and Bowling contend the three-drug injection used in Kentucky lacks safeguards to prevent torturous pain. A drug that suppresses muscle reaction to avoid making those watching the execution uncomfortable masks the suffering, the convicted murderers allege.

The case is the first Eighth Amendment challenge of lethal injection to reach the high court, and the first time the court has accepted a case alleging execution amounts to cruel and unusual punishment since a challenge to electrocution more than a century ago, Grosso said. 

“It’s a hard question to tackle and hard to even analyze,” Grosso said. “What is cruel and unusual punishment given we have the death penalty and how do you know when something is too evil when what you’re trying to do is execute someone?”

“Maybe it’s an oxymoron. Maybe you can’t kill someone without suffering,” she said. “Then the question would be how much suffering does the Eighth Amendment allow?”

The court also is considering another Eighth Amendment challenge that alleges a Louisiana law allowing the death penalty for the rape of a child amounts to cruel and unusual punishment.

Four other states have similar laws that would be rendered unconstitutional if the court sides with Patrick Kennedy, who was convicted of raping his 8-year-old stepdaughter and sentenced to death in 2004.

While the court has ruled that rape involving an adult does not qualify for a death sentence, Kennedy’s challenge is the first test of whether child rape rises to that standard, Grosso said.

“It’s an important case to watch. If you look at Supreme Court cases over the last several years, the court has consistently narrowed eligibility standards. Here, a state has challenged that trend by expanding the reach of the death penalty,” she said.

Grosso says death sentences and executions are on the decline as public support grows for life in prison without parole as a more humane alternative, but doesn’t think the trend suggests abolition is on the horizon.

“Instead of any abolition of the death penalty, the death penalty might just become more rare,” Grosso said. “But we also know that these things are cyclical and that support for the death penalty and the appetite for execution waxes and wanes over time.”

Editor’s note: Contact Catherine Grosso at 217-265-5484; or cmgrosso@illinois.edu