Judging from yesterday's oral arguments over what standard to use in determining whether an execution method violates the Eighth Amendment, the Supreme Court is not inclined to order changes in the way states put people to death. But the arguments touched on a point that struck me the last time I wrote about these cases: Decisions about execution methods have less to do with the comfort of the condemned man than with the comfort of the people watching him die.
The currently favored protocol involves the injection of three substances: sodium thiopental to render the prisoner unconscious, pancuronium bromide to induce paralysis, and potassium chloride to stop his heart. The main criticism of this method is that if the first drug is not administered properly, the prisoner will experience suffocation from the second and severe pain from the third without being able to signal his suffering. During yesterday's arguments, Linda Greenhouse reports in The New York Times, Justice John Paul Stevens said he was "terribly troubled" by the use of the pancuronium bromide, which he called "almost totally unnecessary." Stevens said the only point of this drug seemed to be preventing the prisoner from involuntarily twitching or grimacing, thereby upsetting the witnesses. Yet replacing the three drugs with an overdose of a long-acting barbiturate, as suggested by the prisoners challenging the method, could make executions less "dignified," Chief Justice John Roberts suggested.
In fact, as New York Times legal reporter Adam Liptak noted in a background story last week, the possibility of "distressing and disruptive muscle contractions" was one reason states did not adopt the single-drug method to begin with. Corrections officials also worried that the process "might take a long time." Again, both of these concerns relate to how the execution is perceived, not how it is experienced by the condemned prisoner (who would be unconscious), which is ostensibly what the current constitutional argument is about. State officials also did not want to upset the public by executing people with a method essentially the same as the one veterinarians used to euthanize animals. "These days," Liptak notes, critics of the three-drug method "make the opposite argument," saying "death row inmates deserve to be treated at least as well as animals."
Then again, the choice to use lethal injection of any kind, as opposed to older, less sanitized methods, is mainly about appearances:
Some experts on executions say the debate over which chemicals to use is the wrong one. States have adopted a process that appears humane because it looks like medical treatment, [Fordham University law professor Deborah] Denno said. But looks can be deceiving, she added.
"To me," Professor Denno said, "the firing squad is the most humane and perceived to be the most brutal."
Meanwhile, A.P. reports, China plans to switch from executions by gunshot to executions by lethal injection, which "is considered more humane," according to an official of the Supreme People's Court. Progress?