On Monday, the U.S. Supreme Court examines whether lethal injection, the method used to execute convicted killers in almost all the states that have the death penalty, is unconstitutionally cruel and unusual punishment.
This is the first time in more than a century the court has examined a method of execution. It does so at a time when public support for capital punishment is declining and DNA proof has exonerated 15 men on death row.
Thirty years ago, death by lethal injection was conceived of as a more humane way to execute the condemned. Now, 36 out of 37 states with death penalty laws on the books use that method.
But the three-drug cocktail pioneered 30 years ago has not changed over time, and critics charge that it poses an unnecessary risk of pain and suffering that can be easily avoided.
Indeed, death penalty opponents note that the cocktail used for executions today was long ago abandoned by an American veterinary association for use in killing animals because it was deemed unnecessarily cruel.
Kentucky Case
Monday's test case comes from Kentucky, which uses basically the same lethal injection protocol as other states. The lead defendant ambushed and murdered two policemen who had come to arrest him on an out-of-state felony charge. There is no claim of innocence. The only question is whether the current method of lethal injection poses too great a risk of a painful death when a more benign protocol is available.
Kentucky, backed by other death penalty states and the Bush administration, argues that states have led the way in finding more humane ways to execute the condemned. The state of Kentucky contends that there has been no showing of a substantial risk of pain and suffering using the current lethal injection protocol.
"The small magnitude of these risks is certainly something the state emphasizes as a reason why there shouldn't be judicial micromanagement. But also the inability to quantify the risks associated with one procedure versus another. There's going to be no predictability about what a judge will say the lowest risk method is," says Roy Englert, the lawyer who represents Kentucky.
Countering that argument, death penalty opponents contend there is ample evidence that the current three drug cocktail poses an unnecessary risk of pain and suffering, and that the current protocol violates the Eighth Amendment ban on cruel and unusual punishment.
The Supreme Court has long interpreted the Eighth Amendment bar as based on evolving standards of decency. Thus, punishments that were acceptable at the time the constitution was written — for example, putting people in stocks — would not be permissible today. The last time the court ruled on a method of execution was in 1878 when the court upheld death by firing squad. By the 20th century, states moved to electrocution, gas, and, finally, lethal injection.
Three Drugs Used
So, just what is the lethal three drug protocol that is used now in Kentucky and elsewhere? The first drug, sodium thiopental, is a barbiturate meant to put the condemned prisoner to sleep deeply enough that he feels nothing afterwards.
The second drug, pancuronium, is a paralytic that prevents the prisoner from twitching, convulsing, or indicating discomfort. Anesthesiologists and end-of-life doctors contend in briefs filed with the court, that if a person is not properly anesthetized, the paralytic will prevent him from being able to indicate any distress, and pancuronium can a make him feel as if he is suffocating.
The third drug, potassium chloride, stops the heart. But, again, if the prisoner is not properly anesthetized, medical experts say the drug will be excruciatingly painful. It will make the prisoner feel as if his veins are on fire.
Englert argues that is all beside the point, since the state's protocol calls for the condemned prisoner to be given three grams of sodium thiopental first — and that is 10 times the surgical dose of the barbiturate.
"If the three gram dose of sodium thiopental is correctly delivered there is going to be no pain and suffering," he says
But defense attorney Elisabeth Semel says the key is whether the dose is administered properly.
Administration Is Key
"That means that if it is given by individuals who know how to mix the drugs properly, how to administer the drugs properly, and who are able both in terms of skill and physical proximity to the inmate to ensure that the anesthesia is going into the veins and not the tissues," says Semel.
Semel, who heads the California death penalty project at UC Berkeley, contends that the procedures used in Kentucky and elsewhere are an invitation to botched executions, which have, in fact, occurred.
The paralytic prevents the prisoner from indicating that he is not asleep, she says. What's more, the technicians administering the drugs are not even in the same room as the condemned prisoner. Once the IV lines are inserted, the technicians administer the drugs from another room with a glass window. No medically-trained personnel are in the death chamber to check on lines and monitor the prisoner; only the warden is in the room.
"Assessing anesthetic depth is not something that a warden is capable of doing," Semel says.
Those opposing the three-drug protocol say it would be far simpler to use a massive overdose of one drug, a more modern and long-acting barbiturate, which is what veterinarians do in putting down animals.
Executions Blocked
Indeed, Kentucky's own medical expert at one point testified that a one-drug solution would get rid of most legal objections to the procedure. But he added that it could take longer, and because there would be no paralytic to avoid twitching, it could be more difficult for witnesses to watch.
Englert adds that the one-drug protocol has not been tested on humans
"The potential for error in an untested methodology, as opposed to one that has been successfully used hundreds of times, is much greater," he says.
Experts in anesthesiology and end-of-life critical care seem to disagree.
Joseph Meltzer, a professor of anesthesiology and critical care medicine at Columbia University, echoes other experts when he says that the three-drug cocktail is sufficiently complicated in the mixing and administration of the drugs that it has inherent risks.
"Each added level of complexity opens the door to potentially more and more error, so one drug may be more simple than three," Meltzer says.
That was the conclusion of a Tennessee state committee appointed to evaluate various methods of lethal injection, but state officials indicated they were worried about being the first state to deviate from the current norm.
And defenders of the current procedure argue that, even if they adopted the one-drug solution, death penalty opponents would undoubtedly challenge that, too.
Now, the Supreme Court is looking over the states' shoulders.
In a previous lethal injection case that did not directly challenge the method of execution, some members of the court seemed to indicate they see no constitutional requirement for a painless execution. Others indicated that the state may have an obligation to execute prisoners in the most humane way possible.
For now, the court has blocked all executions so that no prisoner will die while it considers the issue. But by summer, the court will have some answers to the questions about what is and is not acceptable in executions by lethal injection.
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