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A Mixed Cocktail of Law and Fact

Attorney Andrew Cohen analyzes legal issues for CBS News and

When they hear oral argument Monday morning in a case about the constitutionality of lethal injection procedures, the Justices of the Supreme Court will face a classic legal conundrum.

Kentucky wants to keep what it labels its new and improved execution protocols - and it has the law on its side. Two condemned death-row inmates want the protocols changed - and they have the facts on their side. The Justices must choose.

The two most important things to say about Baze v. Rees is what the case is not about. It is not a case that could prohibit capital punishment in America - that isn't even on the table here. And it is not a case that is going to lead to a reprieve for the men who are bringing it - the best they can hope for is to be executed more efficiently, professionally and perhaps a little less painfully. (Good news! You won the case. Bad news! Later this year you'll be given an even deadlier mixture of drugs.)

Ralph Baze and Thomas Bowling, two death row inmates fighting to die a little more cleanly, come to court (well, their lawyers come to court) benefiting from a recent surge in public consciousness about the skeezy way in which prison officials have carried out their duties using the lethal mix. For example, they come citing the December 2006 execution in Florida of a man named Angel Nieves Diaz, who suffered burns on his arms when his executioners botched their jobs by injecting one of the drugs into the soft tissue of his arm.

They come to remind the Justices that "the drug combination" used in Kentucky "is so sensitive to error and potentially inhumane that Kentucky law, like that of many other states, prohibits its use in animal euthanasia without anesthetic monitoring by trained professionals," the type of monitoring they say does not exist in cases of human euthanasia. Give that responsibility to "untrained personnel" working in "inadequate facilities" and presto, say the defense attorneys, you get a constitutional violation.

Lawyers for Baze and Bowling are pushing these sorts of facts to argue that the Justices must intervene and force Kentucky - and perhaps every one of the dozens of other states which employ the method - to strengthen their procedures so as to make them strong enough to carry the weight of the 8th Amendment's proscription against "cruel and unusual punishment." It's a fairly modest argument. The lawyers concede that lethal injection can, when administered in the appropriate circumstances, be a legally permissible way for the state to perform executions.

Kentucky comes to Court Monday with three items on its speaking agenda. First, the Commonwealth wants the Justices to remember just how "grisly" were the crimes committed by Baze and Bowling. In fact, the first substantive pages of Kentucky's brief focus almost exclusively upon the 1992 murders (by Baze) of Powell County Sheriff Steven Bennett and Deputy Sheriff Arthur Briscoe, and upon the 1990 murders (by Bowling) of Eddie and Tina Early.

Next, Kentucky's lawyers want to remind the Justices that the state courts of Kentucky have fully mulled over the issues raised by Baze and Bowling and just as thoroughly have rejected them. There were no problems in 1999, Commonwealth lawyers argue, which was the last and only time that Kentucky ever executed someone by lethal injection. Kentucky's procedures are "similar to those in other states," these lawyers say, and the Supreme Court has long acknowledged, if tacitly, the legitimacy of this form of execution.

Finally, Kentucky wants to be sure the Court knows that the 8th Amendment has not typically been interpreted to preclude from punishment, capital or otherwise, the infliction of any and all pain. "Petitioners have been sentenced to death, Kentucky seeks to execute them in a relatively humane manner, and has worked hard to adopt such a procedure," the Commonwealth begins its legal argument. It's just that simple and it depends upon what your definition of "relatively" is.

Oral argument in Baze v. Rees arrives before the Court just days after the Justices announced they intend to hear later this term an even more profound death penalty case. Last Friday, the Court agreed to hear a challenge by a Louisiana man who has been sentenced to death there for child rape - a non-capital (if particularly evil) crime. Only five states presently have such laws on the books and no other state has attempted to enforce their provisions since the Court ruled a generation ago that capital punishment for non-capital crimes is unconstitutional.

And the debate over lethal injection comes before a Court which has become increasingly willing - even as it becomes evermore conservative - to limit the application of the death penalty in America. In 2005, the Court struck down capital punishment for juvenile murders. In 2002, the Court struck down the death penalty for mentally retarded murderers. Throughout this period the Justices have repeatedly chastised rogue courts in Texas which have failed to follow Supreme Court precedent. This is the context for Monday's argument.

It's Fact v. Law, Ideology v. Trend, Contraction or Expansion of the Death Penalty. Those are stark choices for the Justices even if they come from a case that isn't likely to make a stark difference in the way the lives of the two men who have brought it will end.

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