Their decisions are based on new evidence suggesting that prisoners have endured agonizing executions. In response, judges are insisting that doctors take an active role in supervising executions, even though the American Medical Association's code of ethics prohibits that....Takes too long and makes witnesses uncomfortable? How can that outweigh the interests on the other side? I imagine some of you are getting ready to write that people who get the death penalty deserve to suffer, and that's why I worry about the mental state of the person who prepares the dose of the first chemical. Now, it's known that if you skimp on it, the method of execution that was supposed to be gentle can be made excruciating. I'm not surprised that judges have responded by demanding supervision by medical personnel.
The recent decisions, by contrast, rely on accounts of witnesses, post-mortem blood testing and execution logs that seem to show that executions meant to be humane have, in fact, caused excruciating pain.
The three chemicals used in lethal injections in about 35 states have long attracted attention for what critics say is their needless and dangerous complexity.
The first chemical in the series is sodium thiopental, a short-acting barbiturate. Properly administered, all sides agree, it is sufficient to render an inmate unconscious for many hours, if not to kill him. The second chemical is pancuronium bromide, a relative of curare. If administered by itself, it paralyzes the body but leaves the subject conscious, suffocating but unable to cry out. The third, potassium chloride, stops the heart and causes excruciating pain as it travels through the veins.
Problems arise, lawyers and experts for the inmates say, when poorly trained personnel make mistakes in preparing the chemicals, inserting the catheters and injecting the chemicals into intravenous lines. If the first chemical is ineffective, the other two are torturous.
In veterinary euthanasia and in assisted suicides in Oregon, a single lethal dose of a long-acting barbiturate is typically used. But corrections officials and their medical experts say using that method in executions would take too long and would subject witnesses to discomfort.
April 12, 2006
Lethal injections.
The legal challenges to lethal injections have been rather successful lately:
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31 comments:
I would agree that, though, having earned a death penalty, we should not be unecessarily cruel in executing it. Nonetheless, I really do not have a huge amount of sympathy.
At least we don't have crucifixtions, hangings or drawing and quartering any more.
Perhaps a return to firing squad would be better. I mean, it is nothing if not quick.
But really, is there any form execution that will past muster for many of the groups brining this challenge? I mean besides Dr. Kevorkians machine. Perhaps dehydration is appropriate as we have courts and doctors who believe it as humane way to let a person pass?
Why don't we just gradually switch out the oxygen in a sealed chamber for CO2? Or maybe it's CO. Either way, I'm given to understand you fall unconscious well before you die, so it seems reasonably humane. In the alternative, let's just anesthetise them before we perform the execution.
Tristram: The article describes the injection that would be more humane. It's the same thing that's done for assisted suicides in Oregon. The state argues that it takes too long and makes witnesses uncomfortable -- clearly inadequate excuses.
There still is alot to be said for plain old hemp being attached to the neck and allowing gravity to do all the work.
I suppose there's always been moral hazard on the part of the executioner. There's a good axe blow and a bad axe blow. Marksmen can miss. The knot might catch.
On Star Trek TNG they had this portal thing the condemned walked into and that was that. Still, Dr. Major Charles Emerson Winchester III had second thoughts.
I think this idea that we can clinicalize death is misguided. It's death, and it's not going to be great, and it's probably going to hurt.
That said, it shouldn't be torture. If the three dose lethal injection is especially susceptible to being torturous, then other methods should be used.
I don't understand why the other lethal injection method takes a long time. We had to put our dog down about two years ago, and it was almost instantaneous. How about a huge dose of the short-acting barbiturate?
The problem with hanging is that it doesn't always work, and it doesn't always work right. The goal is to find the right length of rope, that when the guy hits the end of it, his neck is broken, but his head doesn't pop off. If his neck is broken, then he slowly strangles to death - unless his sentence is commuted, as it sometimes was in those situations.
The problem is that it was almost more of an art than a science, as different sized people needed different rope lengths. Also, placement of the knot was also supposedly important. Unfortunately for the hanging industry, there just aren't enough of them any more for anyone to actually gain any measure of competence in them in this country.
I think that gas is the way to go. Colorless, odorless, poison gas. Firing squads don't always work. Old Sparky was even more problematic, with some flopping around like fish on a line, screaming the whole time.
Ann, sorry, I was arguing what I believe is certain to happen: another case challengin THAT procedure. I guess I am just used to the slippery slope arguments where every concession made in the procedures leads to more amd more restictions that extend the process to the point where now people are argung that it will be cruel to execute people since they have been on death row so long.
I should add that the way to really go is with a guillotine. I know, it is French. But it was designed for just this sort of problem. It is relatively quick and humane. And it gets consistent results, which is a major problem with pretty much all the other methods of capital punishment we have tried.
I should add that the way to really go is with a guillotine. I know, it is French. But it was designed for just this sort of problem. It is relatively quick and humane. And it gets consistent results, which is a major problem with pretty much all the other methods of capital punishment we have tried.
But it mutilates the body. When returning the body to the deceased's family, how horrible for them that must be to see their kinsman in two pieces like that!
The witnesses, from only one execution, quoted in the article as seeing "writhing and gagging", were apparently his own lawyers:
"Instead of the quiet death I expected," one of the lawyers, Cynthia F. Adcock, said in a sworn statement about her client Willie Fisher, who was executed in 2001, "Willie began convulsing. The convulsing was so extreme that Willie's cousin jumped up screaming."
Given that the article earlier says that the second dose of chemicals, the curare derivative, completely paralyzes the person, I fail to see how there would be "convulsing" unless both the first and the second doses were ineffective. The amount of all chemicals they put in is far in excess of the minimum necessary.
The committed attorneys who are part of the anti-death penalty movement will do and say almost anything in their fight against it. They argued against electrocution once lethal injection was available on cruelty grounds. Now that lethal injection is the norm, they argue against it in favor of the assisted-suicide drug. If society makes a switch, they will then argue against THAT method, too. Perhaps the long delay between administration and death is cruel because it gives the condemned too much time to think about the poison in his veins.
I've witnessed a lethal injection, when I was a lawyer for our state governor. There was no writhing, no apparent agony. I couldn't even tell just exactly when death occured. It was a sad thing to watch, but far more comfortable than what the man had done to his entirely innocent victim (rape-murder). Based on his past history at his young age, I have no doubt in my mind that he was a serial killer we were lucky enough to catch on his first killing. And I have never lost a night's sleep over him.
Rather than make judgments based on emotional feelings and pick apart method after method of execution, why don't we set the rules FIRST. What are the criteria for a humane execution? Is any pain allowed? For how long? If the body is convulsing but the mind is already dead, does that matter? If we decide what the rules are ahead of time, then we can decide whether particular methods meet those criteria.
Why not just adopt the standard that no one shall be executed in a manner more painful that the one in which they used to kill their victim?
Mr. Hayden, I wouldn't get too cozy with the Frogs (french) if I were you. A good, well oiled 1" hemp rope will not break in the vast majority of cases. The Public has always enjoyed a good hanging where everything went well and the culprit repented and fessed up and offered himself as an example for young men not to follow, which could easily garnish a longer prayer from the Parson, a pat on the back from the hangman and even a hymn from the audience.
Bruce Hayden: Thanks for the info. I didn't know that neck snap was a function of rope length. I thought it was a function of knot slip.
Still, I'm pretty sure the guillotine blade was not always as sharp as it might have been.
There was a tribe in (I think) New Guinea that would execute people by bending down two tall saplings and tying the tops into the victim's hair, then chopping off the head, so that the victim's last sensation was of flying through space. Pretty cool.
Marghlar: I agree. Let's cut to the chase before we head down the wrong path and end up a basket case.
This is an absurd argument! We couldn't have a firing squad, by this reasoning, because the poor fellows would be scared as they watched the squad assemble, and that's cruel and unusual, isn't it? It's obviously a tactic to end the death penalty itself.
Can we then outlaw abortion based on sonograms of babies writhing in pain as they are terminated?
Quite aside from my thoughts on the death penalty, I find several arguments excerpted in the post objectionable.
What kind of training is required to "prepare" these chemicals? These commercially available chemicals come already "prepared" and packaged in sterile bottles. The only thing to do is load the syringe. And I don't think they even do that! They fit the bottle onto a machine that itself pierces the rubber septum and directly pumps the chemicals to the body by way of an infusion line.
The pain of catheter placement is trivial. If it's not, a topical anesthetic can be rubbed over the site of placement to numb the skin. And even that would be far gentler treatment than you or I will ever get being catheterized in a hospital.
I am stupefied to hear potassium chloride is "excruciating as it travels through the veins." In fact, I don't believe it one bit. Anyone qualified to clarify this point?
I can't believe a veterinary barbituate would be painful to a human. I put myself through college as a veterinary technician and I assisted in literally hundreds of animal euthanasias. The chemical commonly used is called pentobarbital. You didn't need much to do the job, but you'd definitely need more for human administration. The only time I saw a painful reaction was when the vet blew the vein. That's why most vets catheterize the animal before euthanizing a pet in front of its owners. Death follows an overdose of pentobarbital before the needle comes out of the vein.
I knew some of the wags would emerge on this topic.....it's a big draw for me
Tristram: AFAIK, Utah still has a firing squad option (and that's my preferred ideal for executions, I think; done right it's very, very quick), and some states still have hanging (which is also very quick if done correctly, since the neck should break instantly). (Re. Bruce's comments, well, a head that pops off is messy, but the death is still quick and non-cruel, so that's no strong argument against it. And a firing squad not working reliably is remediable by having more bullets and bigger guns, perhaps even with fixed aim.)
Crucifixion and drawing and quartering were deliberately meant to be slow and excruciating; totally different from hanging (at least modern trapdoor hanging).
Though if all we were concerned with was quick and painless, (cruel rather than unusual), something involving a fast-moving hydraulic or pneumatic press that would crush the skull down to 1/2" thick in a quarter second would seem to pass muster, no?
Of course, that doesn't obviously pass the "unusual" prohibition (I suppose one could consider that the punishment was death, which is not unusual, and the means, so long as not cruel, don't matter. But I don't know enough about the matter to say if that's plausible or laughably incorrect).
I suspect very strongly - as Tristram says - that the majority, at least, of anti-capital-punishment people aren't really concerned with those considerations, except as a means to prevent executions.
My relationship with capital punishment and the eighth amendment is complicated. On the one hand, I believe that whatever else the Eighth Amendment may mean, it does not rule out the death penalty, and it does not mandate a painless death. Amost any method of execution carries a risk of being botched: the predominant method of execution contemporaneous with the adoption of the Eighth Amendment was hanging, and as Bruce mentioned above, hangings went wrong. In the main, hanging was quick and relatively painless way to go, but even the chance of a slow, lingering death from a botched execution did not render hanging unconstitutional upon the adoption of the Eighth Amendment, it did not render it unconstitutional during the successive 205 years for which it was practised in the United States following the adoption of the Eighth Amendment, and it would not render it unconstitutional if we started doing so again. Executions can go wrong. A punishment may be unpleasent, it may even be so much so, or carry such inherent risk of being botched that it should be abolished, but none of that makes it unconstitutional.
On the other hand, I tend to think that the Eighth Amendment means more than just its most strict interpretation. The Constitution and its amendments "should not be construed strictly and it should not be construed leniently; it should be construed reasonably to contain all that it fairly means" (A. Scalia, A MATTER OF INTERPRETATION at 23). For that reason, I was interested by Ben Wittes discussion on how to expand Eighth Amendment's purview without detatching from text or tradition; that analysis has some problems, which I discussed here, but I'm open to an argument similar to Wittes which is more explicitly rooted in the original understanding of the Eighth Amendment, which I have to admit, may be closer to Wittes' than to Our Hero's.
One way in which I'm open to a slightly more expansive reading of the Eighth Amendment regards another method someone raised, the electric chair. I have a fairly extensive post here on the subject, but the crux of it is, I think there is a good chance that the Electric Chair is unconstitutional. Not because it probably hurts like hell or because it can be botched, ar anything like that; look at the mechanism of death. In other areas of rights jurisprudence, the Court has acknowledged that the underlying principles of an amendment apply even to technologies unforeseen at the time of ratification, when those technologies are used to ends that were familiar to the ratifiers. See, e.g., Kyllo, 533 U.S. 27 (2001). Even if execution by electrocution was unknown in 1791, what exactly does electrocution do? In the most literal, physical sense, it is analagous to being burned alive, and probably feels like somewhere between being burned alive and thrown into boiling oil. Neither of those punishments were widely practised in the early Republic, were rapidly ceasing to exist in Britain (which formally put an end to the practise by law contemporaneous to with the ratification of the bill of rights). For this reason, I think there are methods of execution that violate the Eighth Amendment. Lethal injection is not one of them.
None of which means that lethal injection is perfect; the constitution does not require - but I think civilized society does - that execution should be as painless as possible, if not out of a sense of the victim's humanity, then out of a sense of refusing to lower ourselves to their level. But that is a judgement for the legislative process, not the courts.
Let's not forget the no-death-penalty-state death penalty like Dahmer got in Wisconsin and [defrocked pedophile priest] Geoghan got in Massachusetts.
"... long-acting barbiturate" - OK, so why not a short-acting one?
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The "lethal injection", properly administered (which almost certainly can be done by a trained 12-year-old) is far more humane than the other methods mentioned.
The firing squad is not only messy, but too often required a "quietus" shot directly to the head.
The rope is indeed an art form, with most strangling (and struggling) for minutes if the neck is not snapped - see also guillotine ---
Stoning, well... Also "pressing". These are actually supposed to be painful.
The guillotine is better than those, but seems to leave the head conscious for up to 18 seconds.
Simon wrote: ...the constitution does not require - but I think civilized society does - that execution should be as painless as possible, if not out of a sense of the victim's humanity, then out of a sense of refusing to lower ourselves to their level. But that is a judgement for the legislative process, not the courts.
I reserve the right to judge execution as a barbaric practice, thank you, and it seems likely to me that a 'civilized society' would, too.
Marghlar -
I freely admit that I may be wrong, for any number of reasons, to suggest the electric chair is unconstitutional, but if nothing else, that explanation at least serves to illustrate my thought processes. One of the things that is most arresting about Wittes' essay, linked above, is that he artfully raises - in a way that doesn't immediately raise one's guard in advance - the really, really difficult question for people like me: why does the meaning of cruel and unusual have to include only those methods present in 1791, yet the meaning of "arms" is capacious enough to include mordern firearms, and the meaning of "searches" is capacious enough to include search by infrared device? I have no good answer to Wittes' point. I'm willing to accept that the Eighth Amendment must protect more than JUST what the strict interpretation means, but I'm not willing, as you anticipated, to sign on to Trop's standardless evolutionary principle.
For the foregoing reason, I'm probably best advised to not answer your last paragraph for the time being, since, as you can see, I'm still trying to work out some interpretetive principle to guide that answer.
Incidentally, you mention that the electric chair might now be unusual, if not cruel, but Wittes also takes care to point out that to violate the eighth amendment, no matter HOW we define cruel and unusual, a punishment must meet BOTH those definitions (that is, cruel AND unusual is not the same as cruel OR unusual) to be struck down.
Dave -
"I reserve the right to judge execution as a barbaric practice, thank you, and it seems likely to me that a 'civilized society' would, too."
I don't see how that conflicts with anything I said. What I said was that execution is not unconstitutional, and neither is lethal injection, but that it seems to me that society probably ought not to tolerate painful and lingering methods of execution, and that this is a judgement for legislatures to make. None of that precludes you - or even a majority - from deciding that the death penalty should be abolished. The Constitution permits the death penalty, but it doesn't require it - if you think lethal injection is a terrible idea, pursuade enough of your fellow citizens and pass a law outlawing lethal injection. Heck, you could go one step further - pursuade enough of your fellow citizens and pass a law eliminating the death penalty in your state. I would vote for that law (see Where I'm at on the death penalty, 1/18/06. I you can pursuade enough of your fellow Americans, you could even pass a constitutional amendment abolishing the death penalty nationwide, and you would do so with my full support. I do not support the death penalty. But I do not say that it is unconstitutional, and I will resist attempts to brand it as such as readily (if not more so) than I will support efforts to abolish it.
It's getting a little too late at night - and too deep into a bottle of red - to go into great depth, but the essentially theory regarding the Fourth Amendment, Kyllo and the like, is that the meaning of the Fourth Amendment hasn't changed one whit - it still sets standards for searches, even without evolutionary content. That doesn't NEED to change as a principle, because a search carried out by newfangled equipment is still a search. I guess the best way to analogize it to the Eighth Amendment is this: I don't know if the founding generation had yet invented the trapdoor method of hanging, or if they still pushed people off stools. But if they had passed an eleventh amendment banning hanging, it would still preclude hanging whether you open a trapdoor or push them off a stool, because in either case, you're still hanging the person, and whether you're kicking open a door or using a gee-whiz infra red search scope 5000, it's still a search.
Hopefully that makes some kind of sense, LOL.
I actually agree with you - and disagree with Scalia - that there is some kind of proportionality requirement inherent in the eighth amendment, I'm just not sure of the specifics. The problem with Wittes' essay is that he's done enough to convince me that Scalia's approach is too narrow, but he hasn't really provided an acceptable alternative, so I'm still working that out. But what I would say - which comes back to formalism - is that there should be situation-neutral rules to determine what is and is not cruel and unusual. Certainly, that which was in 1791 still is; the question is, what else might be. The "evolving standards of decency" just doesn't measure up, and I don't know what the alternative is yet. Hence, that I'm shying away from specifics until I've established a neutral interpretative rule.
"The dose of sodium thiopental must be measured with precision, and the calculation of the proper amount of the drug depends upon both the concentration of the drug and the size and condition of the subject. Because of the manner in which the drugs are administered (remotely), the risk of errors in the injection causing insufficient amounts of chemicals to enter the bloodstream is greatly increased.
"The effect of dilution or improper administration of thiopental is that the inmate dies an agonizing death through slow suffocation while fully conscious, yet unable to express any pain. While pancuronium bromide paralyzes skeletal muscles, including the diaphragm, it has no effect on consciousness or the perception of pain or suffering. For this reason, the use of paralyzing agents for the euthanasia of animals like cats and dogs has been made illegal — either directly or by reference to the American Veterinary Medical Association's panel on euthanasia, which prohibits the practice generally — in at least 19 states, including Texas, the state that executes the most people by lethal injection. However, the use of these agents for execution continues...
"In 2005, University of Miami researchers reported in the medical journal The Lancet that they believed in 43 out of the 49 executions they investigated, the level of thiopental in the blood was lower than that required for surgery." - Wikipedia
What's most interesting to me now: Punishment is barred when it is both cruel and unusual, but the nation might find execution cruel and/or unusual though our founders did not. It certainly is viewed as both in nearly every other 1st World democracy (notable exception: Japan).
ps - not the same dave who reserve[s] the right to judge execution as a barbaric practice, though i think he's on point
Dave,
If that's what the wikipedia article says, then it is flagrantly wrong, and I will try to correct it this afternoon. They are mixing their figures; certainly the numbers 43 and 49 appear in the study, but the former appears as a percentage of the abolute number represented by the second. That is, the Lancet study found that of "49 executed inmates[,] 21 (43%) inmates had [thiopental] concentrations consistent with awareness."
You can download the Lancet article here, and I commented on it a few months ago here (noting that the assertion of the authors that "the current protocols 'unquestionably cause a painful, spazmatic death'" is categorically disproven by their own figures).
As was finally raised above, I oppose any execution.
I think that it's a lack of respect for human life.
Some on the right are confused and say that the murdererer - until capital punishment is expanded to yet further crimes - did not show a respect for human life.
But there are few more basic maxims than 'two wrongs don't make a right'. The criminal, indeed, did not have the proper respect for human life, and we're right to condemn his wrong, not copy it.
However, the belief that all human life has value, even a murderer's, means that even killing heinous mass murderers is still adding to the wrong, not correcting it.
Put him in prison as punishmnet and to protect society. Leave him alive and humanely treated because that's our society valuing human life in any case.
It's hardly as though a life sentence lacks deterrent value.
Any form of capital punishment is partaking in evil.
In light of Craig's comment, I feel that I really must clarify my own statement that "I would vote for . . . [a] law eliminating the death penalty." I do not share Craig's moral concerns; on a moral level, I fully support the death penalty for rape and murder. The reason I would vote to abolish (or at least, suspend) the death penalty is because I accept the validity of the mass of evidence suggesting erroneous conviction and inadequate review of the same. In a perfect prosecution where multiple independent video recordings showed a murderer killing his victim before numerous witnesses and being arrested on the spot by police still holding the murder weapon, I would fully support the death penalty for that person. But I recognize that in practise, few cases are so concrete, and the irreversability of the death penalty militates (in my view) for its suspension in all cases where there is anything short of genuinely irrefutable proof.
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