The Case Against Lethal Injection

The Case Against Lethal Injection

by Michelle Kaminsky, Esq., December 2009

When the Supreme Court agreed to hear Florida death row inmate Clarence Hill's plea in Hill v. McDonough, it touched a vein in America. The issue before the high court is actually a very narrow, procedural one pertaining to appellate rights, but that hasn't stopped the national discussion of the larger question: Is lethal injection unconstitutional under the 8th Amendment's prohibition against "cruel and unusual punishment?"

Recently released evidence virtually screams "yes," but we'll get to that in a moment.

In the case before the Court, Hill is convicted of murdering a police officer, and is challenging Florida's lethal injection procedure in a civil rights claim as a last-ditch appeal, having exhausted all other methods. Hill's lawyer claims that the so-called three-drug "cocktail" administered may cause "wanton and gratuitous pain" that Hill would not be able to express during the execution.

Lethal injection executions work like this: The prisoner is strapped down to a gurney while his executioners are behind a wall, hidden from view. The first drug, an anesthetic called sodium thiopental, is injected into the prisoner's vein. Next is pancuronium bromide, which paralyzes voluntary muscles, but the prisoner remains conscious and able to feel pain if the anesthetic has not kicked in. The third and final drug is potassium chloride, which stops the heart.

Sounds quick and painless, right? If everything is administered correctly, it can be. However, logs and toxicology reports from recent executions in California and North Carolina indicate that some of those executed may not have been anesthetized adequately, thus exposing them to the reportedly fiery pain associated with potassium chloride. This possibility, in fact, is the crux of Hill's argument.

Lethal injection is used by the federal government and by 37 of the 38 states with the death penalty—Nebraska is the lone exception. Just the possibility of the Supreme Court's taking up the constitutionality of the lethal injection has caused a de facto moratorium on executions in nearly all states that have the death penalty. Executions have been stopped in California, Missouri, Delaware, Ohio, Tennessee, New Jersey, and—hold on to your hats, folks—Texas.

Although the constitutionality of lethal injection isn't before the Court, an issue on which it has never ruled, one comment by Justice John Paul Stevens during oral arguments hints that the Court, along with the nation, is not ignoring the bigger picture.

"Your procedure would be prohibited if applied to cats and dogs," Justice Stevens told said to an attorney arguing on behalf of the state.

Stevens' remark echoes one even more to the point made by Jamie Fellner, U.S. program director at Human Rights Watch and co-author of its recent report entitled "So Long As They Die: Lethal Injections in the United States," which finds that "prisoners may have experienced excruciating pain during their executions."

"The U.S. takes more care killing dogs than people," states Fellner.

Why the references to animals? When a condemned inmate is given the final, painful dose of the three-drug lethal injection, no one checks to make sure he is in a level of deep unconsciousness first. If your pet is being put down, however, American Veterinary Medical Association guidelines require this precaution; it is inhumane to do otherwise.

The lack of medical personnel at lethal injection executions is, indeed, a major sticking point in the debate. Anyone involved in medicine can tell you that delivering fluids intravenously requires training and practice. Many lower courts thought they could reach a compromise by requiring doctors at executions. Nice in theory, but doctors abide by the American Medical Association's Code of Ethics, which prohibits them from taking part in the killings.

What does the medical profession think of current lethal injection procedures? A 2005 letter written by University of Miami researchers urged stopping lethal injection executions to prevent unnecessary cruelty and suffering. Concerned with potential flaws in anesthesia methodology during lethal injection executions, the researchers reviewed autopsy toxicology reports from 49 executions in Arizona, Georgia, North Carolina, and South Carolina. They found that 43 of the 49 inmates had post-mortem blood anesthesia levels below that required for surgery; 21 of the inmates had levels consistent with actual awareness.

Why is this particular combination of drugs used? The formula was originally concocted in 1977 by an Oklahoma medical examiner without any training in pharmacology or anesthesia. Texas followed, and then most other states with legal injection copied after that. According to information compiled by Human Rights Watch, not one state has asked the medical community for its assessment of whether the lethal injection drug combination could be altered to ensure less pain for recipients.

In other words, seemingly without questioning the procedure in the slightest, more than half of our United States continue to use the 30-year old Oklahoma formula because, well, that's what other states do. Good thing all the other states aren't jumping off bridges.

Blind persistence in using this particular combination ignores the fact that pharmacology has made great advances over the years, and that another, more humane choice of drugs for lethal injection already exists. In the state of Oregon's physician-assisted suicides, patients orally take a large dose of a barbiturate, which puts them into a coma within five minutes followed by a painless death within a half hour.

But corrections officials don't like this method—it takes too long, as an inmate typically dies within 10 minutes with the current system. Another option is to eliminate the paralytic drug so that if an inmate is suffering, it would become obvious. This isn't favored either because then observers of the execution might have to witness convulsing and twitching, and that could be disturbing. Apparently, watching an execution, in general, is not disturbing.

And here we come to the real heart of the argument, even if it is obscured by valid claims of victims' rights and retribution. Do death penalty proponents want the inmates to suffer? Perhaps it's not written so cleanly in the state's brief, but there can be no other reason that death penalty proponents would insist on continuing to use a system that may cause lethal injection recipients to suffer suffocation and excruciating pain before their deaths when other, more reliable and less painful methods exist.

This is where death penalty proponents brush up against the Constitution, though, as torturing inmates before their death in a "cruel and unusual" way is plainly unconstitutional under the 8th Amendment. Until capital punishment is abolished as the barbaric punishment that it is, the Supreme Court (or Congress, the President, someone) has an obligation to require states and the federal government to make the procedure as humane, and constitutional, as possible.

Without this precaution, we are all rendered less human.