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OldSpeak

Cruel and Unusual Questions

By Rachel King
January 15, 2007

On December 13, 2006, the state of Florida executed Angel Diaz by lethal injection. The execution took 34 minutes and two doses of lethal drugs, and Diaz was reportedly moving and mouthing words after the final injection. Apparently the prison official improperly inserted the catheter, causing the lethal drugs to go into soft tissue instead of the vein. Governor Jeb Bush has declared a temporary moratorium on executions, pending an investigation of what happened. 

Mr. Diaz’s execution was not the first one that was botched. On May 2, 2006, Ohio executioners took 22 minutes to find a suitable vein to insert the catheter into Joseph L. Clark. After several minutes, the vein collapsed. Clark’s arm began to swell, and he said “It don’t work” five times. The curtains surrounding the gurney were then closed, and technicians spent an additional 30 minutes trying to find another vein. Media witnesses later reported that they heard “moaning, crying out and guttural noises.” It took 90 minutes before Mr. Clark was pronounced dead. 

The idea for lethal injections was first put forward by Dr. Stanley Deutsch, an anesthesiologist at the University of Oklahoma. He recommended an intravenous infusion of a barbiturate, followed by a muscle relaxant as an ideal (and inexpensive) way to bring about a speedy and humane death. The first execution by lethal injection took place in Texas in 1982 and, since then, has become by far the preferred method of execution.  Every death penalty state except Nebraska has adopted lethal injection, and, until recently, death penalty proponents believed that they had finally found the foolproof method for killing people. Unlike electric chairs, gas chambers, firing squads or hangings, which have resulted in gruesome botched executions that offend the constitutional prohibition against cruel and unusual punishment, lethal injections appeared to be as peaceful as putting the condemned person to sleep. Or so it was thought.
 
We are now learning that people may not be drifting off into a peaceful slumber. Rather, irrefutable evidence is mounting that lethal injection induces excruciating pain and panic before unconsciousness and death. Most states use a three-drug “cocktail” for their injections. The first drug is a fast-acting barbiturate, usually thiopental sodium that anesthetizes the prisoner; next pancuronium bromide paralyzes the muscles, making it impossible for a prisoner to communicate; lastly, a lethal dose of potassium chloride stops the heart. Because pancuronium bromide stops all muscle functioning, it is impossible for the prisoner to communicate if he is still conscious before the lethal dose of potassium chloride is administered. Even the American Veterinarian Association has banned pancuronium bromide for euthanizing animals because it prevents veterinarians from determining whether the animal is unconscious before the final lethal drug is administered.

In 2006, 17 prisoners – from states as diverse as California, Missouri, Florida and New Jersey – brought constitutional challenges to lethal injection due to the extreme pain induced by the process (five of them were executed before their cases were concluded and twelve are still pending). In the case of Alley v. Little, U.S. Court of Appeals Justice Martin wrote, “The dysfunctional patchwork of stays and executions going on in this country further undermines the various states’ effectiveness and ability to properly carry out death sentences. We are currently operating under a system wherein condemned inmates are bringing nearly identical challenges to the lethal injection procedures. In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result.” 

The most recent lethal injection decision came on December 19 when the Maryland Court of Appeals halted Vernon Evans’ execution on the grounds that the lethal injection procedure had not been properly promulgated under Maryland’s Administrative Procedures Act.  Maryland lawmakers are now at a crossroads. The lethal injection protocol must be revamped to allow public input or the legislature must exempt lethal injections from the administrative procedures act, depriving the public of its legitimate oversight of state executions. Or they can take a more sensible approach and eliminate the death penalty altogether.

Maryland’s Governor-elect O’Malley put it best when he questioned whether “all of the money we spend prosecuting death penalty cases might be better spent fighting violent crime and saving lives.” Other states are also considering the wisdom of continuing with the death penalty. A New Jersey Commission has recently recommended repealing the death penalty. This Commission came in the wake of a legal challenge to New Jersey’s lethal injection procedure. At the start of 2007, the North Carolina legislature heard testimony recommending repeal of its death penalty. Illinois has had a moratorium on executions since 2000. And in 2004, New York’s high court ruled its death penalty unconstitutional, and the legislature refused to fix it. 

Considering the additional costs of prosecuting death penalty cases – two trials, two defense counsel, two prosecutors, a lengthy jury selection process and extended appeals – most states are finding that a capital case costs more than housing someone in prison for life. And since the death penalty does not make us safer – states without the death penalty have lower homicide rates – one has to wonder why we persist with this failed policy.

The death penalty inevitably falls short of the standards of human dignity, its costs are exorbitant and it’s susceptible to irreversible wrongful convictions and racial bias. That’s why we are better off without it. No matter how hard states try to come up with the perfect method for killing people, something always goes wrong. The business of state-sponsored killing is messy and, unavoidably, a cruel and unusual process. 

Rachel King is a Professor of Law at Howard University School of Law in Washington, D.C.

DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.

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