Weekly Briefing

Lethal injection goes before the U.S. Supreme Court

By Rob Schofield

As one of the dwindling group of nations that still permits executions, the United States continues to wrestle with the fundamental question of how to carry out The Deed. What is the appropriate way to kill a person? Firing squad? Guillotine? Hanging? Cyanide?

Over the decades, the standard of what constitutes “cruel and unusual punishment” under the ban in the Eighth Amendment to the Constitution has evolved. While Americans have been put to death via a wide variety of officially sanctioned methods (the gallows, gunfire, the electric chair – even public burning and “hanging in chains”), today the choices are much more limited. Of the 37 states that still put selected prisoners to death, 36 rely upon lethal injection (i.e. intravenous chemical poisoning) – a system in which the condemned is poisoned to death via an intravenous “drug cocktail” of three chemicals. Only Nebraska, which still relies upon electrocution, is different.

With intravenous poisoning, the condemned is first sedated and rendered unconscious with sodium thiopental. Next, the person receives an injection of a paralyzing agent called pancuronium bromide that causes breathing muscles to stop. Finally, a dose of potassium chloride stops the heart.

Here in North Carolina, the state gave the condemned a “choice” of lethal injection or the gas chamber after 1983. The latter was formally abandoned in 1998 in the aftermath of some horrific executions, including that of David Lawson in 1994. As was grippingly reported by the News & Observer’s Bill Krueger at the time, Lawson attempted to resist the cyanide by holding his breath and shouted “I am human!” to his executioners and the arrayed witnesses.  

The current debate

Despite the seeming widespread popularity of intravenous poisoning (which was seen by many as a humane alternative to the more barbaric techniques of the past), the procedure is also controversial – even amongst those who favor capital punishment. Yesterday, the U.S. Supreme Court heard oral arguments in a case out of Kentucky that challenges the constitutionality of the three chemical cocktail.

Here’s how one report describes the problem with the current poisoning formula:

“Death penalty opponents argue that there is ample evidence that the current three-drug cocktail poses an unnecessary risk of pain and suffering. Anesthesiologists and end-of-life doctors contend in briefs filed with the court that if a person is not properly anesthetized, the paralyzing agent will prevent him from being able to indicate any distress, and that pancuronium bromide can make him feel as if he is suffocating. And medical experts say that if the person isn’t properly anesthetized, then the third drug, which stops the heart, will be excruciatingly painful, making the prisoner feel as if his veins are on fire.”

Opponents of lethal injection laws point to more than one botched execution in recent years in which there was evidence of just such a disastrous (and arguably unconstitutional) turn of events. They note that because the officials conducting and observing the execution are usually in another room (North Carolina, of course, has had a long and complex debate about how and to what extent trained medical personnel are involved in executions) it’s easy for things to go wrong. State committees in at least three states (Florida, Tennessee and California) have called the cocktail into question. 

The real rationale: societal comfort

Strangely enough, there does not appear to be anything particularly magical about the current three-part chemical concoction. As has been noted by experts and even a “friend of the court” brief filed in the Kentucky case, veterinarians have been successfully euthanizing animals with an overdose of a single chemical, a barbiturate, for decades.

The problems with the one-chemical approach, however, are twofold. First, the death it precipitates may not be as pleasant for witnesses to observe. Not only may it take longer to complete than the three-chemical approach, the absence of the paralytic agent may allow the condemned to involuntarily twitch and move while expiring. In other words, while the three-chemical approach may be much worse for the condemned, it gives the appearance to the observers of a quiet and painless death. In contrast, it appears that the opposite is true for the one chemical approach.

The other problem with the one-chemical/animal euthanasia approach is equally unrelated to its effect on the condemned and was explained in the following excerpt from last week’s New York Times:

“When Texas was considering whether to adopt the Oklahoma protocol in the late 1970s, the medical director of Texas’ corrections department, Dr. Ralph Gray, consulted a veterinarian in Huntsville, Tex., Dr. Gerry Etheredge.

‘I told him,’ Dr. Etheredge recalled Wednesday, ‘that in veterinary medicine when we euthanized an animal most of us used pentobarbital, a general anesthetic, which is very potent and long-lasting, and we overdosed it and everything went smoothly. It was very safe, very effective and very cheap.’

Dr. Gray, who has since died, had only one objection, Dr. Etheredge recalled. ‘He said it was a great idea except that people would think we are treating people the same way that we’re treating animals. He was afraid of a hue and cry.’”

To put matters simply and bluntly, if the issue is the cruelty to which the punishment subjects the condemned, intravenous three-chemical poisoning may well have nothing over beheading or administration of a shotgun at close range or any of a number of grisly methods. Like the practices of conducting executions behind closed walls and in the middle of the night, the real reason for the current chemical protocol is to protect the sensibilities of the public, not to make the deaths of the condemned more “humane.”

Looking ahead

In yesterday’s hearing before the Supreme Court, justices appeared to be dividing along some of the usual ideological lines. Chief Justice Roberts and Justice Scalia, not surprisingly, were particularly skeptical of the challenge to the three-chemical combination while Justice Souter expressed a desire to send the case back to the trial court in order to conduct more thorough factual findings. Justice Stevens also expressed great concern about the administration of the paralytic agent – something the counsel for Kentucky defended as being necessary to protect the “dignity” of the inmate.

Given the current Court make-up, however, the chances that a majority would strike down the three-chemical approach as unconstitutional seems fairly remote. With Alito and Thomas all but certain to join Roberts and Scalia, defenders of the status quo need only to capture one of the remaining five votes on the Court to prevail.

Even given such a scenario, however, the Kentucky cases are still likely to make a significant impact in at least two important ways – both of great relevance to the ongoing debate in North Carolina.

First, the debate places the spotlight on the inherent flaws in any capital punishment system. While a majority of the U.S. Supreme Court may not find it violative of the Eighth Amendment, there is no longer any hiding the fact that killing people is, even under the most “humane” circumstances, a grisly business. Indeed, as Justice Breyer noted yesterday, there is no guarantee (at least at this point) that the one-chemical, animal euthanasia approach couldn’t lead to disastrous results as well.      

Second and more broadly, the cases serve to point out the inherent contradictions of state sanctioned killing in the 21^st Century. As more and more Americans appear to be coming to understand – witness the recent abolition of the death penalty by elected officials in New Jersey – capital punishment is (like slavery, torture, racism and many other once widely celebrated and now dead or dying institutions) a practice that fares worse and worse over time as more of the world comes to truly grasp what’s involved.

Thus, in the months and years ahead, when the Supreme Court is finished and public officials in states like North Carolina go about the business of interpreting and applying the final decision, it should be clearer than ever to all involved exactly what’s truly at-stake. In the long run, this can only be a good thing.           

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This entry was posted on Tuesday, January 8th, 2008 at 11:25 am and is filed under Weekly Briefing. You can follow any responses to this entry through the RSS 2.0 feed.