Supreme Court rulings won't end lawsuits

Death penalty opponents have instead promised even more litigation claiming lethal injection can cause excruciating pain.

In disparate decisions, the court ruled in April that fatal injection, when done properly, does not violate Eighth Amendment protections against cruel and unusual punishment. On Wednesday, justices declared killing child rapists does violate it.

And it is the earlier decision, some legal experts say, that will most affect death penalty challenges. Not for what it clarifies, but for what it doesn't.

This spring's ruling was based on one Kentucky execution that encountered no problems while officials administered a three-drug injection. Defense attorneys argued the use of that protocol risked causing cruel levels of pain.

But the court established that challengers must prove "substantial risk of serious harm." Sparse evidence presented by defense attorneys in the Kentucky case did not meet that requirement, justices said.

Yet, say several death penalty experts, that new standard establishes a threshold while simultaneously opening a door to cross it.

Defense attorneys who can document that botched executions have caused serious suffering could gain great inroads for their death row clients, those experts said.

"This presents not just an opportunity, but an obligation to develop arguments with evidence about less-than-perfect protocols," said Douglas Berman, a law professor and death penalty expert at Ohio State University's Moritz College of Law. "And those states inclined to tweak their protocols may be setting themselves up for further litigation by people who will say 'Hey, they changed their protocols so that must mean there's something wrong with them.'"

Such challenges have already occurred in California, which has the nation's highest death row population at 669, and Texas, which executes more inmates than any other state.