Injection Injunction

Are we just one tweak away from the perfect execution method?

Jacob Sullum | October 3, 2007

"From this day forward," Supreme Court Justice Harry Blackmun wrote in 1994, "I no longer shall tinker with the machinery of death." Although the Constitution clearly permits the death penalty, Blackmun had concluded it was unconstitutional in practice because it could not be imposed fairly and consistently.

By agreeing to consider a challenge to current methods of lethal injection, the Supreme Court has begun to tinker quite literally with the machinery of death, a repair job that promises to further slow an already creaky contraption. For opponents of the death penalty, the ultimate goal is a finding that execution is unconstitutional in practice because it cannot always be carried out instantly and painlessly.

As a matter of constitutional law, I think they're wrong. But the squeamishness reflected by the continuing quest for a perfect execution method suggests the abolitionists may ultimately win the policy debate, and perhaps they should.

On the face if it, the objections raised by Ralph Baze and Thomas Bowling, two murderers on Kentucky's death row, can be readily addressed. Indeed, their argument that Kentucky's execution procedure violates the Eighth Amendment's prohibition of "cruel and unusual punishments" hinges on the claim that it poses "an unnecessary risk of pain and suffering"—"unnecessary because it could easily be avoided."

Kentucky's method, similar to those followed by almost all of the 36 other states that use lethal injection, involves three substances: Sodium thiopental knocks the prisoner out, pancuronium bromide paralyzes his muscles, and potassium chloride stops his heart.

The main concern about this procedure is that an inadequate or improperly administered dose of thiopental (or too long a delay in the execution process) could leave a condemned man conscious while his muscles, including the ones needed for breathing and communication, stop working. In that case, he would experience suffocation, followed by the pain associated with the potassium chloride injection, without being able to signal his suffering.

Replacing thiopental with a longer-acting barbiturate and/or eliminating the pancuronium bromide would avoid this scenario. For that matter, a big dose of a longer-acting barbiturate (the method used for physician-assisted suicide in Oregon) would be enough on its own to cause death, greatly simplifying the procedure. Other possible fixes include better training of the technicians who carry out executions and the use of a brain wave monitor to verify sedation.

But any feasible execution method will be imperfect, subject to equipment malfunction and human error, and arguably inferior to available alternatives. The Supreme Court has not ruled on the constitutionality of an execution method since it upheld the use of firing squads in 1878. If it endorses the Eighth Amendment standard urged by Baze and Bowling, it will invite endless litigation over the details of each state's procedures.

It's worth recalling that state legislatures adopted lethal injection in response to the shortcomings of the electric chair and the gas chamber, which themselves were presented as more humane alternatives to hanging. All of these methods, if they're done properly, can kill a man with minimal pain, but they can also be botched, and none is pleasant to witness.

On that score, it's striking that abolitionists' accounts of botched executions often feature gruesome details that do not indicate prolonged suffering, such as involuntary defecation, smoking skin, and accidentally severed heads. If a man is already unconscious or dead, the condition of his body cannot cause him any discomfort. Why does it still upset people who see or hear about it?

This is a question that should interest conservatives who believe disgust reflects moral intuition. If the aim is to quickly and reliably kill people while inflicting as little pain as possible, it would be hard to improve on the guillotine or a close-range shot to the back of the head. Yet we shrink from such methods, perhaps because they too vividly display the reality of killing a man in cold blood.

© Copyright 2007 by Creators Syndicate Inc.

Comments

A libertine.|10.3.07 @ 7:46AM|#

The state cutting off heads and shooting people in the back of a head is not a pretty PR image. The state wants an execution to seem more like the putting down of a vicious animal, than the murder of a human. Hell, I know De Sade had all of this figured out in the 18th century:

To kill a man in a paroxysm of passion is understandable, but to have him killed by someone else after calm and serious meditation and on the pretext of duty honourably discharged is incomprehensible.

The law which attempts a man's life is impractical, unjust, inadmissible. It has never repressed crime-for a second crime is every day committed at the foot of the scaffold.

'Til the infallibility of human judgements shall have been proved to me, I shall demand the abolition of the penalty of death.

|10.3.07 @ 8:24AM|#

I've always been confused as to why the execution procedure seemed so complicated. Doesn't an anesthesiologist have to be really careful to not accidentally kill someone?

Regarding the morality of capital punishment, I used to have no serious moral problems with it, but I've heard enough stories about innocent people being offed that I'm against it now.

|10.3.07 @ 8:29AM|#

The article's conclusion hit the nail on the head. Most people base their morality on emotions. They find a quiet death out of the public sight more acceptable than the gruesome transformation a corpse goes through right after the death. That's why gut feelings must be tempered with some rational reflection when making laws.

|10.3.07 @ 8:41AM|#

Fifteen years ago I was in favor of the death penalty. Now I'm against it. I changed my position mostly because when I favored it, I thought it was a simple way to deal with some people that you didn't need to spend much time on. Then I realized that we spent more time and money killing them than if we just locked them up. Then I realized that everybody deserves to be considered. Then the reality of who gets the needle and who gets to walk became more stark to me.

One thing. I knew the gas chamber and electric chair were sold as humane execution devices. But I didn't think it was actually possible to use them in a manner that isn't grotesquely painful.

|10.3.07 @ 8:49AM|#

If the death penalty were so right and proper, a firing squad would suffice.

robc|10.3.07 @ 8:53AM|#

Im sure the general views on the death penalty would change (but Im not sure in which direction) if we went back to public hangings.

What would Jack Ketch do?

|10.3.07 @ 9:08AM|#

I have no real moral objection to state execution of prisoners for certain crimes. It seems to me that if it is morally acceptable for the state to kill people in certain circumstances (war (especially assassinations of enemy military leaders, for instance, police actions,) then there is no real moral objection against such executions as punishment. Opposition to it seems to be based more on an offense to one's sensibilities rather than any true objection on moral principle.

The problem is that, as Warren noted, there are some rather strong pragmatic arguments against it as it is implemented in this country right now. The numerous death penalty cases in Illinois that had to be re-opened in recent years is a good example. If the state is executing people who didn't commit the crimes, then there are serious problems with the death penalty.

But again, that is a purely pragmatic argument.

stuartl|10.3.07 @ 9:13AM|#

Fifteen years ago I was in favor of the death penalty. Now I'm against it.

I've also waffled back and forth over the death penalty, but whenever I think of John Allen Muhammad, the beltway sniper, I realize that sometimes it is appropriate. And I am not too worried about it accidentally being painful.

|10.3.07 @ 9:32AM|#

The numerous death penalty cases in Illinois that had to be re-opened in recent years is a good example.

The story there wast that Illinois at least reopened them. Most states won't turn that rock over.

The state most abusive of the death penalty has got to be Texas. They've been doing a death a day for the past twenty years. Mostly Black and Mexican and almost entirely poor, the Texas judicial system would still be in need of reform if they stopped with the state sanctioned lynching. But it would be a good first step.

|10.3.07 @ 9:36AM|#

I've also waffled back and forth over the death penalty, but whenever I think of John Allen Muhammad, the beltway sniper, I realize that sometimes it is appropriate.

It may be appropriate, but it isn't necessary. I don't see that anything useful is served by going to the added expense of putting him to death. On the contrary, I think executions only feed the bloodlust for vengeance that has perverted the way we handle criminals.

Steven|10.3.07 @ 9:37AM|#

Carbon monoxide is pretty painless.

Tym|10.3.07 @ 9:41AM|#

I've also waffled back and forth over the death penalty, but whenever I think of John Allen Muhammad, the beltway sniper, I realize that sometimes it is appropriate.

Cases like this deserve the death penalty.

|10.3.07 @ 10:10AM|#

Tym - there are a lot of cases that deserve the death penalty. There are just too many people falsely convicted of murder.

So long as there are dirtbag prosecutors, disinterested juries, and bad police work, people will be falsely convicted of murder. Once they are killed by the state, there is no hope of justice for them.

Owner of The Guillotine Shop|10.3.07 @ 10:34AM|#

I've got an idea for an excution device that is fast and foolproof.

thoreau|10.3.07 @ 10:38AM|#

The question is not whether there are people who deserve the death penalty. The question is whether the state should be trusted to reliably identify those people and administer the punishment.

Anybody who reads this blog must know how capricious the decisions of prosecutors can be, and how easily they can railroad a person.

Chuck|10.3.07 @ 10:38AM|#

Do away with the death penalty. Bring back outlawry.

JBinMO|10.3.07 @ 10:42AM|#

I know this sounds like a strange idea, but what about giving people that have admitted their crime (murder) the option of life in prision of a painless death. I would take death.

Rhywun|10.3.07 @ 10:49AM|#

I've also waffled back and forth over the death penalty

Me too, and I think the question of whether to use it at all is galactically more important than how it's done. In fact, I don't see why the method used should have any bearing on the issue whatsoever. The end result is the same.

Nat|10.3.07 @ 11:22AM|#

I'm against the death penalty based on virtually every reason I've heard except for the Constitutional argument. I was undecided on the subject for years but I think Bush's Texas years turned me into a hardliner. That, and reading Radley Balko's superb work, and reading about Iran's public hangings. thoreau's comment above gets it exactly right.

Apart from that, Jacob is surely correct that the Constitution does not prohibit the death penalty. As Scalia once pointed out, "hanging [in the 18th century] was not an easy way to die." I doubt the Founders were unaware of what a grotesque spectacle public hangings could be, and if they had opposed such, they would have said so. (I find this odd, as hanging was clearly crueler than alternate methods and was usually done in as painful and humiliating a manner as possible.) The "cruel and unusual" prohibition probably refers to drawing and quartering and other even more absurd and spectacular methods.

Regardless, as far as quick and painless execution methods go, I have one: bring the convict a last meal, a bottle of wine/beer/booze, a box of Simpsons DVDs, and a large bottle of barbituates, then lock him in an isolated room with a bed. Tell him "enjoy your meal, and when you're ready, take every single pill in that bottle and lie down. If you don't want to do that, or you're still alive tomorrow morning, we shoot you in the brainstem."

If I were being executed, that's what *I* would prefer. But we don't do that because a) shooting people in the back of the head is messy and wouldn't put on a nice clean show for the family(s) of the victim(s) and the governor etc., and b) allowing the convict to simply take the pills and fall asleep lacks the symbolism of the state actively killing him. Or such is my suspicion. And that is exactly why I'm against the death penalty: because it is a systematic demonstration of the power of the state over individuals, and pretty much always has been. (Then there's the legalization of revenge, public bloodlust, and so on.)

And yes, this goes for bin Laden, and Hussein, and Timothy McVeigh, and Ted Bundy, etc., all of whom certainly deserved death. But seeing pictures of Hussein's execution didn't really change my mind. To the inevitable question of "would you support the death penalty for someone who raped and killed your wife and children?": I'd want to kill the guy myself.

|10.3.07 @ 11:26AM|#

We dislike even the mention of a draft. We cordially dislike being told to wear seat-belts and helmets. We write living wills. We resent being told what to eat.

It's very simple: we don't want anyone--and that includes the government--to have power over our bodies. We all expect to be left alone, and most of us expect to be left alone even if our obsessive self-control poses an evident risk to the group-at-large: the relationship between seat-belt use, traffic injuries and insurance premiums, for example: roughly, and all other things being equal, seat-belt use up equals insurance premiums down. Or helmets: helmet use down equals head trauma up equals vehicle and and health insurance premiums up.

But in three instances we love to tinker: in sending other people's children off to war; in putting other people to death; in the exercise of control over someone else's uterus.

The state has a legitimate interest in all three: sometimes war is necessary--although we seem to have lost the critical faculty to tell which wars, and when--; criminals commit vile acts and have to be held accountable; without reproduction the community dies.

But some of us like to insist that the government should have nearly unchecked authority over people in one or more of these contexts. The usual bases for this insistence are "liberty," "justice" and "religion," and it's on these bases that debate rests.

But all are actually bound not by any of these abstract principles, but by one eminently practical principle: the acceptance of the government's claim to have nearly-unfettered rights over the bodies of its citizens. Abortion proponents, capital punishment opponents and conscientious objectors are all bound by their objection to that claim and are not, as "conservatives" like to assert, at odds with each other over "protecting killers" and "killing babies."

to waste one's time arguing the merits of a *kind* of execution is already to have missed the point and to have failed at basic citizenship.

|10.3.07 @ 11:59AM|#

i'm for the death penalty in concept, although i think there are problems with how it is 'executed' and there are problems with the justice system in general

i also think that anybody who is for the death penalty HAS to be pragmatic and recognize that even given PERFECT prosecutors, and PERFECT cops (which obviously don't exist), it is still a given that people will be occasionally convicted of crimes they are innocent of.

so, i think that IF one is for the death penalty, one has to admit that it's possible (and given sufficient "n" a near certainty) that somebody who is actually innocent will be executed.

if one takes a process based analysis of our justice system, that may be tolerable, but it is a harsh reality nonetheless.

i agree with the author that there are no solid constitutional arguments agaisnt the DP, assuming it is properly carried out.

|10.3.07 @ 12:34PM|#

Warren,
I think you are exaggerating with the number in Texas. This site says that 405 were executed between 1982 and today. Thats about 18/year. Things have picked up recently, but even then not close to 1/day.
Just slightly over 50% were either black or latino, so I will give you that one.
There is no choice to distinguish economic situation.

|10.3.07 @ 12:50PM|#

"in the exercise of control over someone else's uterus. "

we don't limit it to the uterus. we tell people what drugs they can and can't take and we require physicians to issue you a script before you can get many that remain illegal. others, we ban entirely. we tell people they can;t sell sexual services for profit, too

while i am pro-choice, i feel you misstate the abortion issue. the abortion issue is not about the uterus. it is about the FETUS, which is inside the uterus. that is what we regulate, because we recognize (to lesser and greater extents) that it deserves SOME protection.

even though i am pro-choice, i am distressed when other pro-choicers diminish the abortion argument to being about a uterus, or a woman and her body (which is also absurd. we already regulate what you can do with your body in a million ways, from making certain drugs illegal (which im against) and in regards to prostitution (which i believe should be legal).

abortion is not about regulation of the uterus. it's about regulation of activities towards the fetus.

im fine with the legality of aborting fetuses (in many circumstances) on demand. but let's not pretend the issue is uterus regulation. that diminishes and ignores the fact that the issue is about what to do (or not do) to the fetus. which is a seperate, if dependant organism, although not a person

Nick_M|10.3.07 @ 1:23PM|#

Cases like this deserve the death penalty.

To quote Clint Eastwood, "Deserve's got nothing to do with it."

I believe that the purpose of a legal system is to deter crime, not to satisfy our urge to punish bad people.

However, if I did believe in the death penalty, jkp would deserve it for using three parentheses.

|10.3.07 @ 2:59PM|#

I against over the death penalty for a lot of reasons. Don't think it's unconstitional, but maybe unfairy applied. Don't really buy the executed innocents, but have some doubts.

But if some-one could prove to me that it was actually a significant deterent,(besides he/she won't to it again), I could easily switch sides).

But the method make little difference (the more humane the better).

ROCK MERCHANT|10.3.07 @ 3:40PM|#

I call for a return to Stoning

GILMORE|10.3.07 @ 3:41PM|#

Anyone who is interested should try's Foucault's "Discipline & Punish"... good stuff.

Danny|10.3.07 @ 3:47PM|#

Simply put, the death penalty should be exercised when there is no other viable alternative to make sure that the same crime doesn't happen at the hands of somebody who has committed the crime previously (the crime would obviously have to be severe enough to warrant ending their life permanently). I think that the best way to determine the repetitive criminals would be a two- or three- strikes, you're out rule. I mean really, if somebody does it once, then gets out of jail and does it again, they clearly have no self-control over this illegal act... So don't give them the chance to screw up again.

Mary Jane Merchant|10.3.07 @ 3:47PM|#

Me too, Rock Merchant!

Mary Jane Merchant|10.3.07 @ 3:52PM|#

Oh... I'm sorry... I heard "getting stoned"... My bad.

|10.3.07 @ 5:44PM|#

The guillotine has always seemed to me to be instantaneous and effective. As far as I know, no-ine has survived it.

|10.3.07 @ 6:49PM|#

The real Libertarian solution for the death penalty should not be to outlaw it, but rather to make it voluntary.

If a man is convicted of Murder and does not think his trial was fair, allow him to choose life enprisonment and appeal his case, until the evidence or science becomes availiable for him to prove innocence.

If he is guilty and he confesses allow him to choose, on his own, to have the state end his life in anyway that he sees fit and when he sees fit, no long term waiting necessary.

Life in prison is far worse than death. Why would we outlaw suiside, it only harms those who commit it? We would allow terminally ill patients the same oppertunity, would we not?

|10.3.07 @ 7:45PM|#

The Cory Maye case demonstrates that it is still quite possible for a man to receive the death penalty, who shouldn't even be incarcerated. That alone is reason enough to abolish it.

Danny|10.3.07 @ 8:02PM|#

I agree with what you are saying Ben... The only problem (and it's not with your idea) is that not everybody that will do more serious damage down the road is a murderer to start out with. There was an article pointed to above that talked about two guys that have been involved in more than 20 burglaries, yet they were out on parole when they ended up killing three people. We need to be aware of who is a threat to society and give them Ben's options.

|10.3.07 @ 9:35PM|#

I think that the two real crimes that we need to punnish with long term enprisonment are physical harm (non-consentual assault up to murder) and financial harm (theft).

I think that thieves should be locked up for a long long time when they steal anything that is greater than $1000 in value. I think that we let thieves off too easily in our society by giving the "economically challenged" excuse. Those two crimes are the crimes that should be punnished most.

I also tend to believe that DUI car crashes that cause death should give that man life enprisonment with the option of the voluntary death penalty. There are way too many people causing deaths because of thier BAC level being higher than .05%, and not being personally responsible for thier good time. Traffic deaths caused by other people are a major factor. While I am not a fan of the click it or ticket laws, I would not oppose tougher penalties on those who drive recklessly or violate simple traffic laws, we need to be kept safe from others on the road, just not ourselves (click it or ticket laws).

|10.4.07 @ 11:15AM|#

I think we can never be too safe and to that end, everyone should be born and raised in prison, and if they reach, say, the age of 30 without committing any (even "minor" - as if there could be such a thing) infractions then a release on life-long probation would be in order. After all, we value freedom for those who have earned it.

|10.4.07 @ 12:36PM|#

Quack: "But if some-one could prove to me that it was actually a significant deterent,(besides he/she won't to it again), I could easily switch sides)."

There was a fascinating article (104 Mich. L. Rev. 203) on this very topic in the Michigan Law Review a couple of years ago which examines the seemingly contradictory evidence offered by opposing sides of the debate.

From the abstract: "In general, the states that have executed more than nine people in the last twenty years experience deterrence. In states that have not reached this threshold, executions generally increase murders or have no significant impact. On average across the U.S., executions deter crime because the states with deterrence execute many more people than do the states without it."

So if you want deterrence, you better be willing to execute a lot of people, which would greatly increase the chance of executing innocents.

This American Life had a story with an ironic twist to this a couple of years ago. A guy falsely accused of murder did everything he could to get the death sentence because he knew that if he just got life he would be forgotten. While on death row, he might be able to exonerate himself. He was finally released after 17 years.

Leigh|10.4.07 @ 6:13PM|#

It is hard to match up Jacob's comment:
"On that score, it's striking that abolitionists' accounts of botched executions often feature gruesome details that do not indicate prolonged suffering, such as involuntary defecation, smoking skin, and accidentally severed heads." with the descriptions of botched executions at the link he provides. Several of the accounts of death by electrocution involve flaming bodies, followed by heartbeats detected, followed by death. There is no indication in these accounts that the dying person is sedated, or otherwise provided medicine to render him unconscious. A quick google suggests that the electrocution procedure, if it does work as designed, renders the dying person unconscious in 1/240th of a second. This--and nothing else I have quickly found--speaks to the rate at which a person might be rendered unconscious during a botched execution.

Douglas Harford|10.4.07 @ 6:13PM|#

It's interesting on how we accept the idea that the state is performing the execution of someone. In truth the state doesn't execute anyone. The executions are done by another person. A job that many are applying for? I wonder if it pays well and what the benifits are?
"Excuse me sir, but what do you do for a living?"
"Why I exterminate people."
"Is that legal?"
"Sure as long as you call it execution."

|10.10.07 @ 9:29AM|#

The technology to painlessly execute felons with only a minor risk they might enjoy a few moments of it exists, and is destroyed in service to the tax and spend drugwar every day. Stolen heroin is free, and in one overdose reliably accomplishes everything the current tricky method sometimes doesn't -- a painless and sure death, every time. It's just too politically-incorrect to discuss...