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Die HardestWhy the states are standing by their outdated, messy lethal-injection protocols.

By Dahlia Lithwick
Posted Monday, Nov. 12, 2007, at 7:01 PM ET
Syringe. Click image to expand.

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.

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Dahlia Lithwick is a Slate senior editor.
Photograph of syringe by Snakebite Productions/Digital Vision.
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Remarks from the Fray:

If we're going to ban the death penalty, let's ban the death penalty. But if we're not, the debate over the particulars seems rather silly.

The framers obviously didn't intend for the 8th Amendment to be a criticism of the death penalty. Since the states are not purposefully trying to torture death penalty inmates as a means of punishment, pretty much any method should pass muster. Shoot 'em, hang 'em, toss 'em off a speeding train. Whatever. I can't buy into the pretense that death can be made 'humane'.

As a method of backdoor banning the death penalty, it's especially disreputable. Normally when a lawyer tries to game the system to get around the legislature, the judiciary is supposed to slap them down. Only in death penalty law do we seem to get these sort of Brer Rabbit rulings where judges who know perfectly well they'll get crucified for so blatantly standing up to legislative intent try to make an end run around the will of the people.

Contentious debates such as the death penalty belong in the public square - not sequestered in the courts. If you're going to ban the death penalty, fine. If you're going to retain it, fine. Just don't pretend to be concerned about implementing 'humanely' as an excuse to circumvent the law.

--Xando

(To reply, click here.)

And why, exactly, are we so concerned that those who have committed the most horrible crimes suffer a bit before they die? These aren't everyday criminals we are talking about, but sadistic rapists and killers. Why no mention of that? Worse, what we do to animals is of no moment here. We don't strap animals into electric chairs, either, or subject them to firing squads. Does that mean we're treating murderers worse than animals? No. It means we're treating them like murderers.

--Sycamancy

(To reply, click here.)

The state of Texas is likely finding this to be a great time to put a halt on executions, as it needs to reexamine its own processes for killing killers. The Harris County Crime Lab has been in the news regularly for serious problems, and the state is now investigating hundreds of cases handled by the lab, including several in which the accused have already been executed.

It appalls me that anyone may find reason to justify the possibility that my home state has murdered fifteen innocent people. These investigations have already exonerated several accused sex offenders, some of whom have spent decades in Texas prisons. It is my hope that this is the final farewell for the death penalty here.

The best reason to end the death penalty is the fact that the judicial system is a system designed and employed by human beings, and humans are capable of error. We tend to be cynical about the government's ability to do anything right, and when it comes to tort reform, we express outrage when a jury awards multi-million dollar judgments for petty lawsuits. Yet how can we justify giving this egregiously inept government and these preposterous juries the power to kill?

If someone murdered someone I love, I could conceptualize the satisfaction of knowing that murderer will be killed, too. That's my emotional investment in this issue: people want justice, and we want justice that is proportional to the crime. But it seems to me that the side most dependent on emotional appeals in this debate are the supporters of the death penalty. They aren't thinking rationally on this. It's time to end the death penalty once and for all.

--Anse

(To reply, click here.)

Execution is revenge. It's done to make people feel better, to give them the feeling their extracting the maximum "payback" from the criminal, to create the illusion we're doing something about serious crimes, to give us a feeling of safety in the sense that the death penalty provides some extra measure of protection against murderers. It's emotionally satisfying to kill people we see as threatening us.

Personally, I'm not too concerned about the humane-ness aspect of capital punishment. There is no humane way to execute a person, and a few minutes of physical pain at the end doesn't weigh heavily one way or the other.

I oppose the death penalty because I want to extract remorse from murderers. I want them to sit in jail 30 years or so and think about what they did, how it affected the victim and other people, how it wasted the life of the victim and the murderer. I want them to feel sorry they murdered, not just sorry about losing their own lives.

--Arlington

(To reply, click here.)

Many of us in corrections believed that lethal injection was rather barbaric compared to other proven methods of execution such as the gallows, firing squad and electric chair; all of which are swift and less painful when performed properly. Why these proven methods were abandoned is beyond me.

It is unfortunate that lethal injection which was created to give the image of a quiet peaceful and humane death may be the cause for abandoning capital punishment altogether, which in turn will cheapen capital crimes to the level of non-capital violent crimes. Imagine a criminal who was convicted of the non-capital crime of assault and battery with intent to kill, serving the same sentence as a double murderer. In the end, all criminal behavior is reduced to nothing more than deviant behavior.

--Nanjing

(To reply, click here.)

(11/17)

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