"HUMANE" EXECUTION-- AN OXYMORON?

By Vivian Berger, National Law Journal (Sept. 2006)

Last June, the Supreme Court in Hill v. McDonough (2006) reaffirmed its decision in Nelson v. Campbell (2004), approving the use of section 1983 to attack a means of execution as violative of the Eighth Amendment. In so doing, it permitted condemned inmates nearing the end of their legal appeals to sidestep the barrier of habeas's ban on virtually all successive petitions by applicants who cannot establish innocence. These challenges, impugning specific lethal injection procedures rather than the method in general, were deemed by the justices not to run afoul of the rule that assaults on the lawfulness of confinement must proceed by way of habeas. Hill fueled as well as ratified onslaughts on what many consider a benign mode of accomplishing death. Recent lower-court cases, however, have revealed potentially torturous aspects of execution by lethal injection. If they become widely known, these uncomfortable facts may exacerbate ambivalence about capital punishment -- since no publicly acceptable execution technique can seemingly operate in a reliably "sanitized" manner.

Over the years, the hangman and the firing squad gave way to the electric chair and the gas chamber. In 1977, Oklahoma adopted lethal injection; Texas first employed it, in 1982. Now used (solely or as an alternative means) in 37 out of 38 death-penalty states, it has effectively superseded its predecessors. Each succeeding instrumentality ironically was touted initially as a "kinder, gentler" way of killing, only to be exposed later for the grisly form of torture it was.

While some types of execution like cyanide gas always cause intense suffering, others such as lethal injection risk this result only in certain circumstances. Unfortunately, the real-life setting in which inmates are put to death does not come close to guaranteeing a painless demise, as advertised.

The predominant protocol calls for use of a three-drug "cocktail": sodium thiopental, pancuronium bromide or Pavulon, and potassium chloride. Administered sequentially, the first, a barbiturate, is meant to render the prisoner unconscious; the second is a paralytic agent; the third induces cardiac arrest. Even when nothing goes wrong with the procedure, the condition of the inmate's veins, often severely compromised by drug abuse, may subject him to prolonged stabbing as executioners try to locate an entry port for the IV lines. Worse yet, prison officials have sometimes sought to utilize a "cut-down" process. This method, at issue in Nelson, would have involved making a two-inch surgical incision beneath the bad vessels -- employing only local anesthetic.

Currently, however, court challenges to lethal injection mainly invoke the risk that the execution itself will go awry: specifically, that the condemned person will regain consciousness during the second or third stages. If so, all agree, he will experience a sense of suffocation and excruciating pain. Further, because of the paralyzing Pavulon, he will be unable to communicate his distress. Several courts have found the likelihood of such an eventuality sufficient to stay executions and call for changes in the protocol. (A 2005 article in The Lancet reported post-mortem concentrations of thiopental in the blood consistent with awareness in 21 of the 49 executed inmates studied.) In June, in Taylor v. Crawford, the Eighth Circuit Court of Appeals put all Missouri executions on hold; a similar California case, Morales v. Hickman, awaits a hearing in September.

Taylor encapsulates the problems that arise when the state adopts a medical procedure without appropriate medical (or executive) safeguards. The district court found that Missouri employed no written execution protocol. Relatedly, there were no checks on official discretion, with the result that such protocol as did exist was inconsistently applied. Most shocking, the physician in charge, who was solely responsible for drug dosage, had been sued for malpractice over 20 times; had had his admitting privileges suspended at two hospitals; and, admittedly, suffers from dyslexia -- "which causes him confusion with regard to numbers"! Because the AMA and the American Society of Anesthesiologists ethically oppose participation in executions, reputable doctors refuse to assist, thus relegating the process mainly to unqualified personnel.

Theoretically, states could adopt instruments of death like the guillotine or, more likely, barbiturates alone, which could obviate most of these risks. But concern for witnesses' sensibilities (beheading conjures up Al Qaeda; death by barbiturate overdose would be lengthy and might cause involuntary jerking) has privileged "pretty" over painless executions. The only good solution lies in ceasing entirely to "tinker with the machinery of death" (Callins v. Collins (994) (Blackmun, J., dissenting)) by abolishing capital punishment itself.