On September 25, the US Supreme Court agreed to consider whether the procedure used by the state of Kentucky to administer lethal injection violates the constitutional prohibition against cruel and unusual punishment. This decision is expected to provide important guidance for many other states struggling to fend off similar legal challenges to their lethal injection protocols.
The Kentucky case before the Supreme Court is similar to other legal challenges brought by death-row inmates in California, Missouri, Oklahoma, and Maryland. At issue in these cases is not whether capital punishment is itself unconstitutional but whether the specific lethal injection procedures employed in these states pose the risk of “unnecessary and wanton infliction of pain” and are, thus, unconstitutional under current standards of interpretation of the Eighth Amendment.
These court challenges have prompted more than a dozen of the 37 states using lethal injection to suspend executions. Even Texas, which has conducted far more lethal injections than any other state, will stop carrying out executions until the Supreme Court issues its ruling, likely in the summer of 2008.
Since being introduced 30 years ago in Oklahoma, lethal injection has become the most common method of execution in the United States, primarily because it is perceived as more modern, humane, and less expensive than other methods of capital punishment. Nearly all of the states that have authorized lethal injection use a combination of three drugs for their execution protocols: sodium thiopental (an anesthetic), pancuronium bromide (a neuromuscular blocker that causes paralysis), and potassium chloride (which causes death by stopping the heart).
The problem with this three-drug protocol is that, unless properly administered, it can result in agonizing pain. Potassium chloride is lethal and quick-acting, but causes an acute burning sensation as it travels through the veins to the heart. Pancuronium bromide causes paralysis but does not affect consciousness or the sensation of pain. If the condemned has not been completely anesthetized before receiving a dose of pancuronium, he will remain conscious while being unable to breathe or communicate. If potassium chloride is administered at that point, he will be subjected to excruciating pain that, because he is paralyzed, will go unnoticed by observers.
One reason for the increasing number of lawsuits challenging states’ lethal injection procedures is growing evidence that poorly-designed protocols and a lack of training have led to botched executions, including some in which the condemned may have been conscious when the lethal dose of potassium chloride was administered.
Obviously, one key to avoiding the infliction of unnecessary pain during the lethal injection process is to ensure the proper level of anesthesia. This, however, is not a simple matter. Because professional ethics bar physicians from participating in executions, states must rely on execution “teams” with limited training in crucial areas such as anesthesiology. Competence could be built up if personnel were to conduct repeated executions; however, corrections personnel charged with carrying out executions typically rotate in an effort to reduce the trauma associated with putting prisoners to death.
Researchers point out the 30-year-old three-drug sequence used today was adopted by states with minimal input from medical or other scientific experts. There are no uniform guidelines for dosages or other procedures, with most details being left up to individual state correctional authorities. Before the current litigation brought these procedures out in the open, many states even treated their guidelines with great secrecy, citing “security” concerns.
In a December 2006 ruling on a challenge to California’s lethal injection protocol, US District Judge Jeremy Fogel affirmed that the state’s implementation of the procedure was “broken, but it can be fixed.” He gave the state two options for revising its protocol: either provide qualified medical personnel to ensure the condemned is unconscious during the procedure or administer a single massive dose of a quick-acting barbiturate.
California’s response was to announce it had found two anesthesiologists willing to take part in the pending execution of convicted murderer and rapist Michael Morales. But these physicians abruptly withdrew hours before the scheduled execution time when it became clear that a separate court interpretation would require them to intervene personally in the execution procedure if Morales appeared conscious or in pain during the process.
So why not choose to administer a single dose of barbiturate, such as thiopental or pentobarbital, as has been done in euthanasia? One major reason appears to be concern that the resulting death will take too long—perhaps 30 minutes, rather than three or four—and that witnesses might be uncomfortable seeing involuntary movements of the condemned’s body as the heart stops. Indeed, the primary reason for using a paralytic agent such as pancuronium seems to be to address any discomfort with the death process on the part of executioners and witnesses.
But the Supreme Court is being asked to consider the civil rights of the condemned, not the sensitivities of the public. If the court rules Kentucky’s lethal injection procedure is unconstitutional, most observers expect little immediate impact on the future of capital punishment in the United States. Whether to retain the death penalty is essentially a legislative issue, and support for capital punishment remains strong in many parts of the country.
Under international law, countries that retain the use of the death penalty are obligated to minimize the risk of physical and mental suffering associated with its methods of execution. US law’s prohibition of “the unnecessary and wanton infliction of pain” proceeds from a different, but complementary, principle that seeks to interpret the constitutional ban on cruel and unusual punishment through the lens of contemporary standards of decency.
Earlier methods of capital punishment—hanging, electrocution, lethal gas—have fallen into disuse in the United States largely because they have been deemed not to conform with these standards of decency, especially when contrasted to the quick, painless death promised by lethal injection. Still, as it becomes more widely known that lethal injection as now practiced is often neither quick nor painless, with no simple alternative in sight, Americans may once again be forced to consider whether capital punishment itself is in conformity with their standards as a society.
- China Continues Move to Lethal Injection as Executions Decline
- US Death Penalty Sentences and Use Decline Amid Questions, Dialogue, Issue 26, Winter 2007 (PDF)