A moratorium on the death penalty that began when the Supreme Court agreed to review the lethal injection method has turned out not to be a pivotal moment in the justices’ ongoing struggle with capital punishment.
The halt in executions that started in late September is likely to end by late spring as states restart their processes for executing condemned murderers.
Yet the prospects for success for those who challenge lethal injections may improve in the long run. If, as executions resume, the challengers can generate a record of botched injections and document other problems that they insist exist, they would have a better case than the one the justices decided Wednesday from Kentucky.
Unlike in other states where the death penalty is carried out more often, Kentucky had little history of problems with lethal injection. It is also likely that the justices’ splintered rationale — which played out in seven opinions and a total of 92 pages — will lead to future cases testing the death penalty.
“We cannot hold our breath for this court to stay executions again, certainly not in the wake of this case,” says Elisabeth Semel, director of the Death Penalty Clinic at the University of California, Berkeley, law school. “But if we can gain traction in other states and develop records about how executions are actually carried out, it is likely we could meet the court’s test” for when an execution method is unconstitutional.
Two convicted murderers in Kentucky had claimed that the widely used three-drug lethal injection method constitutes cruel and unusual punishment under the Eighth Amendment.