Hill v. McDonough
On June 12, 2006, the U.S. Supreme Court handed down a decision in Hill v. McDonough, ruling that prisoners facing execution may have access to the courts to challenge the lethal injection procedures that will be used to kill them by using a civil rights statute, 42 U.S.C. Section 1983. The high court reversed the Eleventh Circuit Court of Appeals' opinion that any lethal injection challenges must be brought as a habeas corpus claim and that because petitioner Hill had already brought one habeas corpus action, he was barred under federal law from bringing another. The Supreme Court distinguished Hill's lethal injection challenge on the grounds that he was not disputing the constitutionality of lethal injection, which should be brought as a habeas action, but rather was challenging the manner in which the state of Florida planned on carrying out the lethal injection, which could be brought as a civil rights case. Thus, the Court did not decide whether lethal injection is unconstitutional; it merely permitted prisoners their day in court to ensure that lethal injection is not being practiced in a cruel or unusual manner.
When, in 1977, Oklahoma's state medical examiner, Jay Chapman, proposed a lethal injection consisting of an ultra-short-acting barbiturate in combination with a paralytic as a new method of execution, supporters of the death penalty believed that they had finally come upon a fool-proof, humane method of execution. Although the Oklahoma legislature was the first to adopt lethal injections, the first state to carry out an execution using the method was Texas in 1982. Since then, 37 out of the 38 death penalty states have adopted lethal injections as the primary, if not exclusive, method of execution. Lethal injections appear to be more humane than the other forms that have been used in the United States during modern times: death by hanging, gas chamber, electric chair or firing squads.
The lethal injection protocol appears to be like a medical procedure. A person is strapped to a gurney. Two catheters, one inserted in each arm, are used to inject a lethal "cocktail" of drugs intravenously, making it appear as if the prisoner is going to sleep. Most states use three types of drugs in their "cocktail": sodium thiopental, a fast acting barbiturate that acts as an anesthesia, inducing unconsciousness almost immediately; pancuronium bromide, a paralytic, which stops all muscle movement, except the heart; and potassium chloride, which stops the heart from beating, inducing cardiac arrest. The entire process could cause death in as little as 90 seconds. On average, death occurs between 7 and 11 minutes, but there have been cases reported to take as long as 45 minutes.
Drugs used for lethal injections are the same as those used routinely by anesthesiologists. Thiopenthal is commonly used to induce medical comas; pancuronium bromide is routinely used in surgery to make it easier for the doctor to intubate the patient, and it prevents the patient from moving during surgery. Although anesthesiologists receive years of training and supervision, problems can still occur. Death due to anesthesia is rare, but not unheard of. Even when the correct dosage of a drug is administered, sometimes patients do not become unconscious, creating a state known as anesthesia awareness. Doctors who take a Hippocratic Oath to save life will not usually take part in executions. Therefore, the task of administering these drugs falls to prison personnel, who are not highly trained, thus increasing the likelihood that problems will occur.
Indeed, problems with lethal injection protocol are routinely reported. In the State of Maryland, witnesses observed puddles of drugs on the floor next to the gurney during recent executions, indicating that not all of the drugs made it into the prisoner's veins. A 2005 survey conducted by the British medical journal The Lancet found that in 43 out of the 49 executions they investigated (88%), the level of thiopental found in the blood of the executed person was lower than that required for surgery, suggesting that the person may not have been unconscious during the procedure.
Experts who are familiar with the issue believe that anesthesia awareness could be occurring during lethal injections either caused by an incorrect dosage or simply because anesthesia sometimes does not work. Because the pancuronium bromide prevents all muscle movement, the prisoner is unable to communicate that he is conscious. To the outside observer, that person has drifted off into a peaceful slumber; in reality, the person is conscious and experiencing pain. A dose of potassium chloride would cause excruciating pain, like being burned alive from the inside.
Because paralytics like pancuronium bromide mask pain, the American Veterinary Medical Association has banned their use during the euthanizing of animals. Pancuronium bromide is not necessary to cause death; it is used merely to mask movement. Eliminating its use would not keep states from conducting lethal injections, but it would enable prisoners to communicate if they were conscious.
Some individuals, believing the death penalty to be a fitting punishment for certain crimes, may be unconcerned about whether a condemned prisoner is tortured to death. Regardless of whether or not the person deserves to be tortured, it is imperative that we know what is happening to that person. It is unacceptable to conduct a procedure in which it appears that a person is drifting off to sleep when in fact that person is experiencing profound pain. The lethal injection procedures currently in use may give the appearance of a serene and humane death, but they do not guarantee that the prisoner experiences a serene and humane death.
The Eighth Amendment to our Constitution prohibits the use of cruel and unusual punishment. The only way to determine whether a punishment is cruel and unusual is for the courthouse doors to be open to hear the evidence and decide one way or another. That is why the U.S. Supreme Court wisely left open the doors for prisoners to bring challenges to the lethal injection procedures. That way, Americans can know what it is that our government is doing in our name.
Rachel King is a Professor of Law at Howard University School of Law in Washington, D.C.