STEVE INSKEEP, Host:
NPR's legal affairs correspondent Nina Totenberg has more.
NINA TOTENBERG: But the procedures used by the state were so complicated as to invite problems, and that a simple alternative was available. That didn't seem to impress conservative members of the court like Justice Antonin Scalia.
ANTONIN SCALIA: This is an execution, not surgery. The other side contends that to know whether the person is unconscious or not, all it takes is a slap in the face and shaking the person.
DONALD VERRILLI: Justice Breyer observed that death penalty supporters see this challenge as something of a ruse.
BREYER: What the other side says is well you are just trying to do this by the back door, insist upon a procedure that can't be used.
VERRILLI: Well, I think that one point of the one-drug protocol, of course, is to demonstrate that we're not doing that.
TOTENBERG: In short, said lawyer Verrilli, the challenges are offering a viable one-drug alternative. Chief Justice Roberts...
ROBERTS: Do we know whether there are risks of pain accompanying that method?
VERRILLI: I think you do, Mr. Chief Justice because by definition, barbiturates cannot inflict pain.
TOTENBERG: Justice Breyer said, however, that he remains unpersuaded by the studies he has seen about the relative merits of different methods to end a life by lethal injection.
BREYER: I'm left at sea. I understand your contention. You claim that this is somehow more painful than some other method. But which?
VERRILLI: Well...
BREYER: And what's the evidence for that? What do I read to find it?
VERRILLI: The thiopental is a barbiturate that by definition will inflict death painlessly.
TOTENBERG: Justice Stevens followed up...
STEVENS: What is the justification for the second drug?
ROY ENGLERT: It does bring about a more dignified death - dignified for the inmate, dignified for the witnesses.
STEVENS: So the dignity of the process outweighs the risk of excruciating pain.
ENGLERT: No, your honor. No. It takes a very long time to die with the one- drug protocol.
STEVENS: It's very long then - 10 minutes?
TOTENBERG: Here, for example, is Justice Souter...
SOUTER: What's disturbing Justice Breyer, what's disturbing me and others is, we want some kind of a definitive decision here. And it seems to me that the most expeditious way of getting it - if comparative analysis is appropriate - and I will be candid to say I think it is - is to send this case back and say, okay, do a comparative analysis. Make the findings.
TOTENBERG: Nina Totenberg, NPR News, Washington.