Richard Cooey was executed by lethal injection this morning, after the Supreme Court denied without comment his final appeal.
He had claimed that lethal injection could cause a painful death. The Court declined to address the issue, and simply denied a stay of execution.
Yesterday, the Supreme Court rejected without comment Cooey’s original request for a stay. Cooey had argued that his obesity would make it difficult for prison officials to find a vein, thus rendering his execution cruel and unusual.
The Court decided not to use this case to clarify the law on what medical standards satisfy Eighth Amendment concerns. The Court similarly left the issue alone four years ago in a written opinion.
That earlier case, Nelson v. Campbell, 541 U.S. 637 (2004), was a 42 U.S.C. § 1983 action on the grounds that cutting into an inmate’s flesh to locate a vein was cruel and unusual. Contrary to what the news media have reported, the Court did not rule one way or the other on that assertion. Instead, it ruled that the District Court needed to hold a hearing on whether such a procedure was necessary; and if so, then it would have to address the question of whether the procedure was a constitutional method. The Court specifically declined to address the constitutionality of the specific procedure, because it did not have to reach that issue.
Because the Court has continued to leave open the question of what standard should apply to method-of-execution claims, the door is open to further case-by-case review. Until a clear rule is determined by the Court, one might expect a series of similar appeals, as inmates with varying individual circumstances seek to challenge methods of execution.
Judging from the holding in Nelson, the rejection of Cooey’s claims, and a 1994 lower court case staying the hanging of a severely obese man, it appears likely that the significant factor in any future decision will be whether any wounding of the body is necessary for the execution to be carried out. Hanging an extraordinarily fat person could result in unnecessary decapitation, and so is improper. Puncturing the body to inject lethal chemicals with painkillers is necessary and limited, and is proper. Making an incision to locate a vein may or may not be necessary, and a hearing would be required to determine if it is constitutional.
So we might expect any future written decision on the constitutionality of particular execution methods to focus — at least in part — on the whether any wounding of the body is necessary and limited.