Does Lethal Injection Provide An Obstacle To Opponents Of The Death Penalty?

April 25, 2012

A reader asks:

Do you think that the use of lethal injection in the U.S., which is portrayed in a clinical and seemingly ‘humane’ manner, has a negative impact on the anti-death penalty movement? Versus how a lot of the countries in Europe banned it when things like hanging or firing squad, which are a lot more violent, were the common practice?

No, lethal injection does not have a negative impact on the anti-death penalty movement if the advocate is phrasing his or her objections correctly.

First, let us consider the methodology of lethal injection. Lethal injection is a three-part process. I will borrow Wikipedia’s explanation here:

Sodium thiopental or pentobarbital^[13]: ultra-short action barbiturate, an anesthetic agent capable of rendering the prisoner unconscious in a few seconds.

Pancuronium bromide: non-depolarizing muscle relaxant, causes complete, fast and sustained paralysis of the skeletal striated muscles, including the diaphragm and the rest of the respiratory muscles; this would eventually cause death by asphyxiation.

Potassium chloride: stops the heart, and thus causes death by cardiac arrest.

This is supposed to be a fool-proof process in theory. But in practice, it is not. In 2009, Ohio authorities tried to execute a man named Romell Broom for two hours, during which they were unable to maintain an IV through which to inject him. While there was no physical harm to Broom per se, Imagine the psychological torture of those two hours; incompetent executioners blundering around with a needle that carries on its tip the tripartite exotic state-sponsored poison that will knock you unconscious, paralyze your lungs, and then induce cardiac arrest, literally choking you nearly to death right before stopping your heart. I simply cannot imagine the scope of agonizing anticipation that filled the anxiety-shod minutes of those two hours.

Second, many opponents argue that under the traditional three-drug method, a person who became aware during the second or third phase of the execution would have no way of expressing their pain or discomfort, because their entire bodies are paralyzed during the second phase of the execution. Imagine waking up during your execution, being unable to breathe, literally suffocating to death because your lungs are paralyzed, but you have absolutely no way to express your discomfort or pain to your captors. We should reject the invitation to call any procedure “humane” wherein such a possibility exists, even if it only exists in minute, perhaps even exceedingly rare measure.

Third, studies have been done that suggest that these fears are not theoretical: a 2005 study by The Lancet found that officials who administer lethal injections are often either improperly trained, or lack sufficient equipment to properly monitor the state of the prisoner. Returning to Wikipedia:

In 2005, University of Miami researchers, in cooperation with an attorney representing death row inmates, published a research letter in the medical journal The Lancet. The article presented protocol information from Texas and Virginia which showed that executioners had no anesthesia training, drugs were administered remotely with no monitoring for anesthesia, data were not recorded and no peer-review was done. Their analysis of toxicology reports from Arizona, Georgia, North Carolina, and South Carolina showed that post-mortem concentrations of thiopental in the blood were lower than that required for surgery in 43 of 49 executed inmates(88%); 21 (43%) inmates had concentrations consistent with awareness.[4] This led the authors to conclude that there was a substantial probability that some of the inmates were aware and suffered extreme pain and distress during execution.

It was perhaps these objections that led the inventor of lethal injection, Jay Chapman, to remark that ”It never occurred to me when we set this up that we’d have complete idiots administering the drugs.” To be fair, Chapman’s retort is actually a bit unfair and defensive: his remarks imply that a competently trained and equipped execution team would be able to deliver these injections in a flawless manner with zero problems. But to assume as much is to remove the procedure itself from the stark realities of our criminal justice system; namely the limited resources of prison officials, and society’s tendency to show callous disregard for the inherent human dignity of prisoners on death row.

If Chapman had shown due regard for these realities, he probably could have concluded that it’s almost a foregone conclusion that these injections would be administered in a problematic fashion in a noticeable minority of cases. And given that the Bill of Rights protects individuals, not groups of people, one transgression is one too many for the purposes of the Eighth Amendment’s ban on Cruel and Unusual Punishment. A sound Constitutional rule of decision would defend human dignity by shielding us from any significant probability of cruel and unusual punishment inherent in a state’s execution system. Giving out points for effort doesn’t cut it.

But even with all this being said; we could assume that 100% of lethal injections were performed flawlessly, and it still would not hurt the argument for abolition of the death penalty. Why? Because, among other reasons, as recent as 2007, empirical studies showed a minimum factual wrongful conviction rate in Capital rape-murder cases of 3.3%. If you assume that all of those people are put to death, that means that more than 3 out of every 100 people we sentence to death are completely innocent of the crimes they’ve committed. It is hardly a comfort to know that these people were put to death humanely. They shouldn’t have been put to death at all.

The fact remains that it is impossible for our criminal justice system to administer the death penalty fairly. Indeed, it was this realization that led Daniel Malloy, the Governor Connecticut and a former prosecutor, to sign a bill today repealing the death penalty in Connecticut. His remarks are worth quoting at length:

My position on the appropriateness of the death penalty in our criminal justice system evolved over a long period of time. As a young man, I was a death penalty supporter. Then I spent years as a prosecutor and pursued dangerous felons in court, including murderers. In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect. While it’s a good system designed with the highest ideals of our democratic society in mind, like most of human experience, it is subject to the fallibility of those who participate in it. I saw people who were poorly served by their counsel. I saw people wrongly accused or mistakenly identified. I saw discrimination. In bearing witness to those things, I came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.

So in short: no. The alleged humaneness of lethal objection provides no obstacle to advocates for abolition of the death penalty. 3 out of every 100 killed wrongfully is not made just by virtue of the fact that they were killed humanely. Anymore than if they’d been simply murdered in the same fashion by a benevolent serial killer with a heart of gold.

11:18pm | URL: http://tmblr.co/ZMMjnxKLA49r

(Notes: 33)