It's unofficial: The country is in the throes of a de facto moratorium on the death penalty. In the wake of a Supreme Court decision in September to take a case testing the constitutionality of Kentucky's lethal-injection protocol, and after a series of stays granted by state courts and the Supreme Court, prosecutors in Texas and elsewhere announced they will stop seeking execution dates. This past October was the first month in three years in which nobody was executed in the United States.
As the machinery of death clanks to a temporary halt, the real question is whether this pause in executions is going to lead to more humane death chambers or an all-out ban. Death-penalty opponents are hoping for the latter. John Holdridge, director of the ACLU's Capital Punishment Project, says the moratorium "presents a rare opportunity to reflect on why we remain the only advanced Western democracy to retain this punishment." The American Bar Association just released a controversial report calling for a serious re-examination of the ways the death penalty is administered—highlighting pervasive problems with DNA evidence, racial disparity in death sentences, the state of the capital defense bar, and overzealous prosecutors. Wisconsin Sen. Russ Feingold seized the moment to draw attention to his Federal Death Penalty Abolition Act. It's not surprising that foes of capital punishment are trying to turn this spontaneous moratorium into a permanent one. But why are death-penalty supporters letting it happen?
The question the court will tackle in the Kentucky case, Baze v. Rees(PDF), is a narrow one, and the likelihood of a ruling resulting in an all-out ban on executions is pretty much zero. The court will consider the standard by which to evaluate whether the state's lethal-injection protocol carries an "unnecessary" risk of pain, prohibited by the Eighth Amendment. The justices will look at the three-drug cocktail used in Kentucky and all but one of the 37 states (PDF) that permit capital punishment (Nebraska still uses electrocution). The case comes down to a constitutional quest for the somewhat-but-not-too-painful death, with different lower courts employing a mess of legal standards, including "wanton infliction of pain," "excessive pain," "unnecessary pain," "substantial risk," "unnecessary risk," and also "substantial risk of wanton and unnecessary pain."
The prevalent three-drug protocol consists of an anesthetic rendering the victim unconscious, a paralytic that stops his breathing, and a drug that stops his heart. Mounting evidence suggests some prisoners may be suffering horribly. As Justice John Paul Stevens tartly pointed out at oral argument on a related question, the lethal-injection procedure we use "would be prohibited if applied to dogs and cats." (The American Veterinary Medical Association issued guidelines in 2002 saying the mix of drugs is unacceptable for putting animals to sleep.) Terminally ill patients in Oregon can swallow a large dose of a single barbiturate that will put them in a coma in minutes, and a state commission in Tennessee recommended this in lieu of the three-drug system. Even defenders of the current protocol concede it was simply copied from state to state, each cheerfully adopting the 1977 version cooked up by Dr. Jay Chapman, formerly chief medical examiner in Oklahoma, who devised the system as a hasty alternative to the firing squad. A state-to-state game of telephone: That's how the national patchwork of lethal-injection protocols—many developed and administered in secret—was born. Thus, at a 1990 meeting with Texas corrections officials to devise a protocol for Louisiana, Texas officials were asked why they used 5 grams of sodium pentothal instead of 2 grams, like other states. According to testimony in a Louisiana appeal, Texas' prison pharmacy director just laughed: "When we did our first execution, the only thing I had on hand was a 5-gram vial. And rather than do the paperwork on wasting 3 grams, we just gave all 5."
Dr. Chapman himself recently acknowledged that it's probably time to change the method. He suggests an anesthetic called Diprivan. Michael Rushford, president of the Criminal Justice Legal Foundation, a pro-death-penalty group, agrees the cocktail is "open to criticism." He would suggest carbon monoxide instead.
If academics, doctors, and prisoners—as well as death-penalty supporters and the guy who invented the protocol—have been criticizing the three-drug protocol for years, why haven't the states switched methods? And once the court agreed to hear Baze, why didn't Texas simply change to barbiturates and keep its executions on schedule? You'd expect the states to choose doling out the barbiturates instead of acceding to a monthslong moratorium that will offer the public a chance to see that life without the death penalty may still be worth living.
The reason the states haven't acted is one part strategic and one part inertia. As the appellants' brief in Baze (PDF) points out, most of the states have persistently stood by their protocols with the argument that everyone else is doing it. Kentucky adopted Chapman's cocktail without "any independent or scientific studies" because "other states were doing it … on a regular basis."
As Richard Dieter at the Death Penalty Information Center points out, once the Supreme Court granted certiorari in Baze, the states were forced to defend their protocols en masse, even if they knew them to be flawed. If even one state were to change its procedure now, prisoners in the other states would have a constitutional claim. It's a form of—pardon the pun—prisoner's dilemma; the states backed their way into a rotten system, and now they must insist that it's the greatest, most constitutional system around.
But Dieter points to another, more important reason states aren't racing to embrace new execution methods: "The pitched battle over the death penalty is not a rational one," he says. States that allow capital punishment don't really want to kill a lot more people a lot more efficiently. They want to execute some people, sometimes, and the lethal-injection system—while flawed in substantive ways—was a political solution to a political problem.
The politics of the fight over capital punishment may also explain why, as professor Doug Berman pointed out, the Bush Justice Department seemed to be secretly accepting a moratorium on lethal injections even before the high court agreed to hear Baze. Berman's best hypothesis at the time? "Most folks on both sides of the debate seem to care a lot more about death sentences than they care about whether those sentences result in actual executions."
Deborah Denno, a Fordham University law professor and expert on lethal injection, highlights this same political inertia in a recent article in the Fordham Law Review(PDF).State death-penalty procedures are screwed up because while courts and lawmakers want to be tough on the death penalty, they don't want to dirty their hands with execution. Denno writes that "the entities most responsible for implementing the state's death sentence never want to be associated with the details of it—not the legislatures, not the courts, and until September 27, 2007, not the Supreme Court." Thus, lethal injection policies land in the laps of the states' department of corrections personnel, who have no expertise, and thus depend blindly on the solutions found by other states.
The reason our death-penalty methods are old and rickety is that they were cobbled together on the fly and broadly adopted without care. They are being defended for political and strategic reasons, as opposed to pragmatic ones. And the whole argument is a bad proxy for a larger fight about capital punishment. If carelessness, raw politics, and inertia should be driving policy, the current lethal-injection system is a penalogical grand slam. One shouldn't have to be opposed to the death penalty, be soft on criminals, or be a liberal crybaby to insist that procedures that are hopelessly outdated and medically suspect should be fixed.