Massachusetts Citizens Against the Death Penalty

Lethal Injection

All recent proposals to reinstate the death penalty in Massachusetts have called for the condemned to be executed by lethal injection.  This method of execution is now the norm in the United States and, since its inception in 1977, has been considered the most humane method of putting a condemned prisoner to death.  Recent developments have called this perspective into question and offer not only one more reason why Massachusetts should not have a death penalty, but why the states that rely on lethal injection should reconsider.

Lethal injections are typically performed by the administration of three drugs in series.  First an anesthetic, sodium thiopental, second a paralytic agent, pancurium, then finally potassium chloride to stop the heart.  In theory, the first two drugs put the inmate to sleep and relax the body and the third puts the now unconscious inmate to death quicky and peacefully, in a process that takes no more than ten minutes.

In practice, it doesn’t always work this way.  Many of the condemned killed in this manner were intravenous drug users, and their executions have taken a long time because of the difficulty of finding a usable vein.  When Ohio executed Joseph Clark in May, the whole process took 90 minutes.  Technicians first had trouble finding a vein.  Then after they thought they found one, opened a curtain to allow the witnesses to view the execution, and started the injection, Smith sat up and said “It’s not working.”  The curtain was quickly closed, the problem determined to be a collapsed vein, and another search begun for a usable vein.

Worse, the British medical journal The Lancet reported that, after studying executions by lethal injection in four states, Dr. Leonidas Koniaris and his colleagues at the University of Miami Miller School of Medicine concluded that in 43 percent of these executions the inmate may have been awake, not asleep, when the final lethal drug was administered, and also in painthat he could not express because his muscles were paralyzed by the second drug.  How in the world could Dr. Koniaris’s team know this?  They examined post-mortem toxicology reports and concluded that the amount of anesthetic in the bodies was so low as to be consistent with awareness.

And just this February, a federal court judge sitting in California found that in six of eight of California’s last executions, the prisoner was still breathing after the anesthetic was administered.  What this means is that the prisoners may have not only suffered intense pain from the final lethal dose of potassium, but also may have been conscious of suffocation when they were administered the paralytic.  Dr. Atul Gawande, an assistant professor at Harvard Medial School, described the likely sensation as “a feeling much like being buried alive.”

The 8th amendment to the Constitution bars cruel and unusual punishment.  A method of execution that forces a conscious prisoner to experience suffocation and pain and not be able to express any of this looks cruel and unusual, and not humane in the least.

The Supreme Court took up the issue briefly in an appeal brought by Clarence Hill, an inmate on Florida’s death row.  As expected, the new-look Roberts court decided the case on procedural grounds, leaving for another day the constitutionality of lethal injection.  Hill had brought his claim by way of a civil rights suit, rather than by a direct appeal of his conviction or a habeas corpus petition.  The Supreme Court has done all it can to limit the occasions on which prisoners can use habeas corpus petitions to challenge state criminal convictions or sentences.  It was unlikely to allow a prisoner to skirt all these limits by means of a civil rights suit, and its unanimous June decision avoided doing so.  It allowed Hill’s suit to proceed solely because he was challenging only the method by which his sentence was to be carried out, rather than his guilt or the death sentence itself.  His case has been sent back to the lower courts where it will be one of many being heard in state and federal courts challenging lethal injection.

How should those opposed to the death penalty respond to this issue?  MCADP believes it is wrong for the state to execute anyone at all.  Although killing cruelly is only a secondary objection, it is an important objection nonetheless.

Dahlia Lithwick, Slate magazine’s court reporter, has criticized both sides in the lethal injection debate for having staked out wrongheaded positions, with the advocates of capital punishment foolishly objecting to finding ways to make executions less painful, and opponents of the death penalty appearing to argue in favor of limiting the pain attendant to an execution when they don’t believe in executing people at all.

The reasons that death penalty opponents ought to point out the possibility that lethal injection can be painful are not as muddled as Lithwick thinks.  What’s going on here is not simply a concern about what happens to the condemned, but how society feels about it.

On that score, the trouble with lethal injection, as presently practiced, is that the three drug cocktail appears to cause a painless death, and thus makes it easy for society to avoid thinking about what it is really doing when it executes someone.  Northeastern Professor James Alan Fox was so disturbed by witnessing an execution in Missouri in which nothing really seemed to be happening that he suggested in a June 19, 2006 op-ed in the Boston Herald that he would prefer a messier form of execution to force anyone who heard about an execution to “agonize over it” and thereby “fully confront the inhumanity of capital punishment.”  More graphic methods of execution are unlikely to be adopted and needn’t be for the death penalty to be finally ended.

The reason we are at this juncture with the chief means of execution being one designed to put society at ease stems from a simple fact: people generally are repulsed by the idea of killing other human beings.  That’s why armies have to train soldiers to kill.  Governments haven’t necessarily shared that repulsion and over the generations have come up with nasty, brutish ways to kill people like crucifixion, burning at the stake, drawing and quartering, and keelhauling.  But even the Spanish Inquisition took pity on some of its victims and decided that those who had been condemned to death, but then converted to Christianity, should be killed more mercifully than by auto-da-fè.  The Inquisition’s version of mercy was to garrote these favored victims.  Needless to say, this was less than an ideal solution, but it began a long search for a better, cruelty-free method of execution.

That search has been decidedly unsuccessful.  Traditional methods, such as hanging and firing squads, have obvious downsides.  Hanging works by dislocating and breaking the neck.  Death is rarely instantaneous, but hanging works best if the drop is calibrated to the victim’s weight.  If the victim drops too far, he will literally be decapitated; if too little, he will suffer long, slow asphyxiation.  Death by firing squad is caused by blood loss when the heart is ruptured by a bullet.  But, if the shooters miss the heart, the victim will bleed to death slowly.

The first real attempt at “improving” executions came with the development of the guillotine, made infamous by the French Revolution, but surprisingly used in Europe until the 1970s.  It was meant to be a surer and less painful way of killing people than garroting them.  But aside from the ghoulish aspect off lopping the head of the victim, there exists a still unresolved question about whether the victim retained consciousness after the blade fell.  As bizarre as this may seem, the disembodied head would still briefly have some oxygenated blood in it to fuel the brain.  A doctor who witnessed an execution by guillotine in 1905 proved at least to himself that the victim retained consciousness.  He called out the name of the executed man after the blade dropped and reported the man opened his eyes and fixed his gaze on him.

More recent attempts at humane executions have also failed.  The electric chair proved no advance for as described by the late Justice William Brennan:

...the prisoner's eyeballs sometimes pop out and rest on [his] cheeks. The prisoner often defecates, urinates, and vomits blood and drool. The body turns bright red as its temperature rises, and the prisoner's flesh swells and his skin stretches to the point of breaking. Sometimes the prisoner catches fire....Witnesses hear a loud and sustained sound like bacon frying, and the sickly sweet smell of burning flesh permeates the chamber.

Gas chambers are equally as gruesome.  The conscious victim breaths in poisonous cyanide gas.  His eyes pop, his skin turns purple, and he is in pain according to Dr. Richard Traystman of Johns Hopkins University School of Medicine, experiencing a “sensation similar to the pain felt by a person during a heat attack, where essentially the heart is being deprived of oxygen.”

As for lethal injection, the problematic three-drug approach could be replaced by injecting the condemned with a massive dose of anesthetic alone.  This might lead to less suffering for the condemned, but more for the witnesses because death of the unconscious inmate would take longer, according to Dr. Guwande, and “the prisoner may appear to gasp, struggle, and convulse.”  Thus, there have been no calls that I am aware of for this approach as a solution.

The difficulty in finding an acceptable method of executing people has led not only to the search for better methods, but also to an aversion to having the death penalty at all.  The 18 minutes it took for Wisconsin in 1851 to kill John McCaffary by hanging was one of the reasons the state abolished capital punishment once and for all two years later.

Lethal injection is the final effort to come up with a humane way of death, but it could prove to be the death knell of the death penalty.  If, in the end, society becomes convinced that lethal injection is inhumane, there will be little choice but to abandon the death penalty for good.

by James Rooney 6/06

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