Top court clears way for executions to resume

By James Vicini

WASHINGTON (Reuters) - The Supreme Court on Wednesday rejected a challenge to the lethal three-drug cocktail used in most U.S. executions, clearing the way for a resumption of capital punishment halted since last September.

By a 7-2 vote, the high court ruled against two Kentucky death row inmates who argued the current lethal injection method violated the constitutional ban on cruel and unusual punishment by inflicting needless pain and suffering.

But the splintered court, which issued seven separate opinions totaling 92 pages, left open the possibility of future challenges to lethal injection practices if another method were devised that could be proven to significantly reduce the risk of severe pain.

The Supreme Court's decision was announced as Pope Benedict, an opponent of the death penalty, visited President George W. Bush at the White House.

"It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions," Chief Justice John Roberts wrote in the court's main opinion.

The ruling means more than a dozen death row inmates likely will get early execution date. Officials in the leading death penalty states, like Texas, Virginia and Florida, said they planned to move forward with executions that had been on hold.

"There will be some executions going through but we won't see 50 or 100 in a short time. This is still going to be case by case," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.

Executions in the United States last year fell to a 13-year low of 42, and have been temporarily halted since the court agreed in late September to decide the case. About 20 inmates have received stays of execution.

An Amnesty International report this week placed the United States fifth in the world in the number of executions in 2007, behind China (470), Iran (317), Saudi Arabia (143) and Pakistan

(135).

The court's ruling stemmed from a challenge to the three-step lethal injection procedure of first an anesthetic, then a paralyzing agent and finally a heart-stopping drug.

Death penalty opponents argued the condemned prisoner can suffer excruciating pain, without being able to cry out, if given too small a dose of the anesthetic.

Justice John Paul Stevens agreed with Roberts that the evidence presented by the two inmates failed to show the state's method was unconstitutional. But he said for the first time he believed the death penalty itself is unconstitutional.

JUSTICE QUESTIONS DEATH PENALTY

"Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol ... but also about the justification for the death penalty itself," Stevens said.

States began using lethal injection in 1978 as an alternative to the historic methods of electrocution, the gas chamber, hanging and shooting.

But there recently have been botched lethal injection executions in which inmates took up to 30 minutes to die.

Death penalty opponents vowed to continue the legal battle. "It is likely, if not inevitable, that we will see the U.S. Supreme Court grapple with similar issues again in the near future," said Larry Cox of Amnesty International USA.

Kent Scheidegger of the Criminal Justice Legal Foundation, which backs capital punishment, said, "Today's decision should put an end to the de facto moratorium on the death penalty caused by legal challenges to this method of execution."

The ruling was released on the same day the justices heard arguments in another major death penalty case. They weighed the death penalty for child rape, the first test in more than 30 years of whether a crime other than murder can be punished by execution.

The Supreme Court's approval of a particular method of execution does not prevent states from taking steps to ensure humane capital punishment, Roberts said.

He rejected the proposal by the two Kentucky death row inmates to use just a single, lethal dose of the anesthetic, and said it "has problems of its own, and has never been tried by a single state."

ALTERNATIVES MUST BE FEASIBLE

Roberts said any alternative execution method must be feasible, readily implemented and significantly reduce a substantial risk of severe pain for the death row inmate.

Since 1976, there have been 929 executions in the United States by lethal injection, 154 by electrocution, 11 by the gas chamber, three by hanging and two by firing squad, according to the Death Penalty Information Center.

Roberts said the court has never declared a method of execution unconstitutional. It allowed the electric chair and firing squads in the late 1800s.

Justices Ruth Bader Ginsburg and David Souter dissented from Wednesday's ruling. Ginsburg said she would send the case back to decide whether Kentucky has sufficient safeguards to avoid inflicting severe and unnecessary pain.

(Additional reporting by Matthew Bigg in Atlanta)

(Editing by Frances Kerry)