Stop The Presses! Start The Killing!

The US Supreme Court delivered a 7 - 2 decision this afternoon finding that Kentucky's application of lethal injection does not qualify as 'cruel and unusual' punishment. Several states wasted no time in welcoming the decision and announcing they would be gearing up their murder mills now that the decision is in.

Kentucky along with 34 other states and the federal government use a three-drug procedure. The first drug administered is

sodium thiopental, an anesthetic that is meant to put the prisoner to sleep and make the execution a pain-free experience. The second drug is pancuronium bromide, which shuts down the lungs and paralyzes the body. This is primarily intended to prevent any unnerving convulsions, twitching or gasping which would give the execution the feeling of someone dying versus the impression of someone who has merely drifted off to sleep. In addition the witnesses would find such a death scene uncomfortable and possibly repugnant. The final chemical, potassium chloride, induces a fatal heart attack killing the prisoner.

The problem with this method is that if the first drug is not administered in exactly the proper fashion and dosage, the prisoner will not be completely anesthetized or will awake as his execution progresses. In other words, the prisoner can remain or become sufficiently conscious to feel himself suffocating when the lungs stop working. He will also then feel the excruciating burning sensation of the potassium chloride and of course all the pain of a heart attack.

Of course thanks to the second drug which paralyzes the body, the prisoner will lie there immobile, suffering in frozen silence but quite aware of his painful and often slow death. Three years ago this week, a study was published in the British medical journal the Lancet that analyzed autopsy toxicology reports from 49 inmates killed by lethal injection. In 43 of the 49 cases the concentrations of the anesthetic in the blood were lower than what is required for surgery. In 21 cases, the levels "were consistent with consciousness," according to the study. 

Ronald Reagan, when he was governor of California, was one of the first who began talking about lethal injection as a more humane execution method. Being a rancher he likened it to putting a horse to sleep:

"Now you call the veterinarian and the vet gives it a shot and the horse goes to sleep - that's it. I myself have wondered if maybe this isn't part of our problem, if maybe we should review and see if there aren't even more humane methods now - the simple shot or tranquillizer."

What's really ironic and quite sad about this line of reasoning is that the method used to execute human beings is illegal in many states for veterinarians when 'putting down' an animal. The fear is that in animal euthanization, the paralyzing agent might mask extreme pain. And for those who think that if it's legal it must be effective in providing for a humane execution (there's an oxymoron if ever there was one), the record of terribly botched executions by lethal injection has been well documented.

Interestingly, the Supreme Court's decision comes one day after Amnesty International's annual report on the death penalty placing the US in the top five of executing countries. And yesterday also saw the arrival of Pope Benedict XVI in Washington, one of the world's staunchest moral opponents of capital punishment. It will be interesting to see if the Pope mentions this while he is in the US.

Comments

[Jasper]

So 35 states agree that killing their convicts by lethal injection is humane (enough). Do you think the same 35 states can agree on allowing the very sick and desperate to end their own lives in a humane way? I bet all the arguments against the latter can be used to oppose the death penalty. Apples and pears? I think not.

[lennybruce]

Hi Jasper,

Thanks for coming by and commenting. I think you are quite right. As you probably know the Americans are pretty much the most self-righteous and inconsistent peoples on Earth, to the extent that one can generalize. They are quite full of 'sanctity of life' when it comes to arguments about abortion and euthanasia but not when it comes to capital punishment and war.

Interestingly, one of the supreme court justice in his own opinion - Stevens - came down quite hard against capital punishment but then wrote that wasn't the issue in this case and voted with the majority. He wrote in part:

"Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself...

" The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty...

"Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and legislatures to reexamine the question recently posed by Professor Salinas, a former Texas prosecutor and judge: “Is it time to Kill the Death Penalty?” See Salinas, 34 Am. J. Crim. L. 39 (2006). The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived..."

It seems quite clear that Stevens is inviting new challenges to the death penalty itself in his opinion. Sadly he closes with concurring with the majority in this case because the death penalty was not the issue in this case. So maybe there is a crack in the wall that will open wider in the future.

Don't be a stranger on the weblog!