There was a time when public debate about the death penalty in the
United States focused on concerns about racial discrimination, lack of
competent counsel for indigent defendants, and executing the innocent.
But with the Supreme Court set to hear oral arguments early next year
on whether lethal injection is cruel and unusual punishment, the
death penalty debate has shifted to how we put the condemned to death.
Those who support the death penalty argue that lethal injection is the
best way to "administer death." Even if the condemned person
experiences a few minutes of excruciating pain, it is humane enough
for a convicted murderer. Some of those opposed to the death penalty
worry that if lethal injection is replaced by a truly pain-free
method, the public's appetite for executions will grow. Both sides
agree that a debate about lethal injection will get us nowhere, but in
fact, having the debate is useful, because the story of lethal
injection mirrors that of the death penalty itself.
Botched lethal injections are--like wrongful convictions and
incompetent defense attorneys-- are the product of an astonishing
history of negligence, incompetence, and irresponsibility by state
officials responsible for implementing a punishment that the public
supports, but doesn't want to know too much about.
Lethal injections look peaceful and painless--which is why all but one
of the 38 death penalty states have adopted them to replace the more
gruesome spectacles of execution by hanging, firing squad, poison gas,
or electrocution. But looks can be deceiving. With lethal injection,
the condemned prisoner is strapped to a gurney and injected with a
massive dose of the anesthetic sodium pentothal, which should render
him unconscious and stop his breathing. Next he is injected with
pancuronium bromide, a drug that paralyzes the muscles, including the
lungs and diaphragm. Finally, he is injected with potassium chloride,
which should bring swift cardiac arrest.
All of the states that use lethal injection copied this bizarre and
dangerous drug protocol from Texas, the national leader in executions,
which itself had simply taken the idea from an Oklahoma medical
examiner with no pharmacology experience who concocted the protocol in
1977.
When the drugs in the three-drug lethal injection protocol are
administered properly, the prisoner should be motionless-- as well as
unable to feel pain--within a minute or two. But execution logs from
California and North Carolina reveal body movements inconsistent with
the proper administration of the lethal injection drugs, particularly
the anesthetic. If the prisoners were not sufficiently anesthetized,
they may have felt themselves suffocating from the pancuronium
bromide, or they may have felt excruciating pain as the potassium
chloride coursed its way through their veins to their heart.
Indeed, potassium chloride is so painful that US veterinary
guidelines prohibit its use on domestic animals unless a veterinarian
first ensures that they are deeply unconscious. But most states do not
require anyone to stay at the condemned prisoner's side to make sure
he is in fact deeply anesthetized and unconscious before the second
and third drugs are administered.
It should not be surprising that since 1982, states have recorded at
least 40 visibly botched executions, in which prisoners showed
physical distress during the process --not to mention executions where
the prisoner may have felt pain but was unable to express it because
of the paralytic drug. Court records in the handful of states where
lethal injection is being challenged reveal a sorry litany of
incompetence and bungling.
And when things have gone wrong during an execution, states have done
little to fix the problem. States react to questions raised about
lethal injection the same way they react to claims of other death
penalty injustices--with barely disguised indifference. When courts or
governors have ordered states to review their execution protocols
because of evidence that they may put prisoners at risk of unnecessary
pain, state officials chose not to undertake a careful inquiry, but
rather made superficial changes that fail to address the inherent
flaws of the three-drug protocol. States have been advised of--and
routinely rejected--a one-drug protocol, the administration of a
massive dose of a long-acting barbiturate. The reason? Although the
inmate would not experience any physical pain, it would take him as
long as 40 minutes to die, which would be difficult for the execution
team and witnesses to watch.
If the United States is going to retain the death penalty, it must
ensure that executions are conducted in as pain-free a manner as
possible. But there is no neat, easy, antiseptic way to kill a human
being. The lethal injection debate brings this reality into sharp
relief, and forces the public to acknowledge that when it comes to the
death penalty, nothing about the process, from conviction to killing,
has ever been just.
That's why the more we talk about what executions actually look and
feel like, the more public support for the death penalty falls away as
we grapple with the graphic details of the killing process. No matter
how pain-free we make an execution, it will always be taking a human
life. And it will always be inhumane.
Sarah Tofte is a researcher for the US program at Human Rights Watch
and co-authored a 2006 report entitled "So Long as They Die: Lethal
Injections in the United States."