Thursday, January 3, 2008

The Lack of Lethal Injection Protocols

I get asked this question every semester: why don't the 37 states with death penalty statutes, including the federal government, adopt uniform lethal injection protocols (exempting Nebraska, which uses electrocution only)? And why continue to use the three-drug cocktail (now under constitutional review; arguments set for next Monday the 7th) when a faster-acting solitary chemical compound can be used?

Adam Liptak of the Times explores the latter question in an article this morning:

"When the Supreme Court hears arguments on Monday in Baze v. Rees, the Kentucky case that has led to a de facto national moratorium on executions, it will mostly be concerned with the question of what standard courts must use to assess the constitutionality of execution methods under the Eighth Amendment, which bars cruel and unusual punishment.

"But beyond that is the more practical question of why all 36 states that use lethal injections to execute condemned inmates are wedded to a cumbersome combination of three chemicals.

"The answer, experts say, seems to be that no state wants to make the first move. Having proceeded in lock step to adopt the current method, which was chosen in part because it differed from the one used on animals and masked the involuntary movements associated with death, state governments would prefer that someone else, possibly the courts, change the formula first."

In other words, we're afraid of "how it looks".

"In the Baze case, lawyers for John D. Rees, the Kentucky corrections commissioner, said the three-chemical combination was safe and painless and produced a dignified death. Using only a single barbiturate, they said, was untested, could result in distressing and disruptive muscle contractions, and might take a long time. The method is the one most commonly used for pets, sometimes in combination with a sedative.

"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.”

If this weren't such a deadly serious subject, the above couple of paragraphs would almost seem laughable. Rather than getting the job done in the most painless and efficient manner, corrections officials seem overly concerned with how the execution "appears" to the viewing audience, and queasy about using the same method we've been using to put down stray cats and dogs on our condemned inmates (most often referred to as "mad dogs" anyway).

The article ends with a quote from Professor Deborah W. Denno, at the Fordham University Law School, who says lethal injection may give the appearance of a medical and therefore painless execution, but “to me, the firing squad is the most humane and perceived to be the most brutal.”

In my conversations over the years, most corrections officials who have participated in executions argued that the electric chair is actually the quickest, cleanest kill, but because of the occasional botched electrocution (people catching on fire, etc.) it appeared to be the most brutal method and was therefore phased out.

Regardless, much of this debate has no doubt found its way to the justices in the form of various amici curiae, so next Monday's arguments should be quite interesting.

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