Should lethal injection be considered cruel and unusual punishment - Research Paper Example

?Introduction Lethal injection, which is the execution method of choice, is a controversial one, even though it is alleged to be more humane than other, more barbaric methods of death, such as electrocution. Proponents of the death penalty proclaim that lethal injection is too easy of a death, and older methods serve the ends of retribution better (Denno, 2002, p. 2). At the same time, proponents of the death penalty also favor lethal injection, just because the opportunity to have what is known as a humane way of killing people makes it less likely that the death penalty will be abolished on the grounds that it constitutes cruel and unusual punishment (Denno, 2002, p. 2). Opponents of the death penalty are against lethal injection, as it makes death more palatable, therefore would lead to more widespread use of the death penalty in general. Yet opponents of the death penalty are also for the procedure, as it makes it less likely that prisoners will suffer torture (Denno, 2002, p. 2). These are the broad reasons why both opponents and proponents of the death penalty are for and against lethal injection. However, regardless of whether or not lethal injection appears to be a humane way of execution, it does not necessarily mean that it passes muster under the Eighth Amendment’s prohibition of cruel and unusual punishment. This paper will analyze whether the method of lethal injection should be considered to be cruel and unusual punishment. Argument Basically, the Eighth Amendment prohibits cruel and unusual punishment, which means that the punishment inflicts wanton and unnecessary infliction of pain or torture or lingering death (Stanford v. Kentucky, 492 U.S. 361, 369 (1989)). Among the methods of execution that were prohibited under the Eighth Amendment include such accepted English methods of execution as burning at the stake, beheading, disemboweling, quartering and breaking at the wheel (Furman v. Georgia, 408 U.S. 238, 319 (1972)). Lethal injection must be evaluated under this standard, as to whether or not it inflicts wanton and unnecessary infliction of pain, torture or lingering death. Therefore, even though the lethal injection method of execution is alleged to be pain-free, if this is not the case, and it does in fact inflict wanton and unnecessary infliction of pain or torture or lingering death, it might still be considered to be in violation of the Eighth Amendment. Lethal injection is problematic in that there are bound to be problems that might cause infliction of pain, torture and lingering death. One of the reasons for this is that the procedure was invented by an individual, Fred Leuchter, who had no medical training, and invented the method by reviewing literature on the effects that the protocol had on pigs and estimated accordingly. Although these recommendations have been discredited, they still form the basis for the protocol in “the overwhelmingly majority of states that use the death penalty” a development that caused Debra Denno, author of the most comprehensive report on death penalty protocols in the United States to state “it is not clear how or why this chemical combination has persisted” (Wong, 2006, p. 269). Another of the reasons why lethal injection may be considered to be cruel and unusual punishment is because of the way that it is carried out. Lethal injections are often botched, as there have been over 30 cases of such botched executions since the death penalty was reinstated by Gregg v. Georgia (Wong, 2006, p. 264). Specifically, medical personnel, personnel that would be trained to carry out lethal injection in such a way that it would be complication-free and painless, typically does not want to carry out the punishment. Approximately 19% of medical personnel do go ahead and do this, yet these individuals are met with opposition from medical societies (Denno, 2002, p. 2). After all, they take a Hippocratical Oath that states that they are not to do any harm, and administering lethal injection would be a direct contradiction to this basic oath. Therefore, since medical personnel, by and large, do not get involved with the mechanism of death, prisons have to rely upon personnel who are not experienced or trained to administer a lethal injection protocol (Denno, 2002, p. 2). For instance, even though California in 2006 ruled that medical personnel must take part in executions in that state, or alternatively, the execution protocol must be changed to where there is only one kind of drug being administered, as opposed to three (Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006)), there was immediately problems with the requirement that medical personnel be required to take part in the lethal injection protocol. The American Medical Association, the American Society of Anesthesiologists and the California Medical Association were in united opposition to allowing doctors to take part in these protocols. There were two anesthesiologists who agreed to take part in executions, but both of these anesthesiologists resigned after only one day, as these doctors were misled by officials about their roles (Denno, 2007, p. 2). As the president of the American Anesthesiologist Association stated, lethal injection is not the responsibility of the medical profession. The problem, according to this president, is that society decided that executions are acceptable and that lethal injection is the acceptable way to do it. As he stated, society has painted itself into a legal corner, and is expecting the medical profession to get it out, but this is not the medical profession’s job (Denno, 2007, p. 4). As a consequence of the fact that medical personnel by and large are not able to participate in lethal injection protocols, there is a chance that the official who is administering the protocol will put the intravenous line into the muscle, as opposed to a vein, or the needle may become clogged. This would cause the inmate to experience extreme pain (Ewart, 2006, p. 1167). For example, when James Autry was put to death in Texas in 1984, it took him 10 minutes to die, while he moved around and complained of pain. Moreover, because the technicians performing the protocol are inexperienced, it is sometimes difficult to find a good vein, and this is compounded when the inmate was an intravenous drug user. Such was the case with Steven Morin in Texas, who was a former heroin user, which caused the technician to have to stick Morin’s arms with needles 41 times (Ewart, 2006, p. 1168). Crucially, lethal injection consists of three different procedures – the first is the anesthetic; the second induces paralysis; the third causes death (Wong, 2006, p. 264). The first of these procedures that is the most important is the administering of the anesthetic, for this is what causes the procedure to be pain-free. If a medical personnel is not administering the anesthetic, then it stands to reason that the anesthetic might not be administered properly, which means that the prisoner may feel excruciating pain in dying (Konarias, et al., 2005, pp. 1414-1412). Konarias et al. (2006) sought protocol information from Texas and Virginia, as these two states constituted 45% of all death penalty cases carried out in the United States. They found that the executioners in these states did not have any training in anesthesia (Konarias et al., 2006, p. 1412). The second of these drugs, Pavulon, is perhaps the most controversial of the three. Pavulon is used to paralyze the body, and is normally administered by an anesthetist (Ewart, 2006, p. 1184). Pavulon is not even acceptable for use in animals, as a 2000 veterinarian report found that the drug can cause respiratory arrest before the animal loses consciousness, so that the animal perceives pain and distress after immobilization (Ewart, 2006, p. 1184). In Tennessee, the use of Pavulon to euthanize animals is forbidden (Ewart, 2006, p. 1184). And, just because the patient is paralyzed with the Pavulon drug does not mean that he is not experiencing pain, a fact that has been emphasized by Dr. Sherwin Nuland, author of the book How We Die. Dr. Nuland states that he is baffled by the use of Pavulon to execute human beings, as “complete paralysis does not mean loss of pain sensation” (Ewart, 2006, p. 1187). Therefore, even though people who have witnessed executions by lethal injection state that the inmate appears to pass in a serene manner, this might not be the case. Using the drug Pavulon paralyzes the inmate so that he cannot scream and writhe in pain, but, nevertheless, the pain could still very well be felt by the prisoner, yet not able to show this. What looks like a serene passing from the outside could therefore be excruciatingly painful on the inside (Ewart, 2006, p. 1188). Another example of lethal injection protocol being administered by somebody inexperienced would be the case of Ricky Bell in Tennessee. Bell is a prison official who testified that the protocol that was developed in Tennessee was developed without the assistance of a single medical professional. The protocol was developed simply by copying what other states had done. Moreover, even though Bell was the head of the committee that developed the Tennessee protocol, Bell himself did not have any kind of medical training, and did not have any kind of training with lethal injection protocol, other than studying other states’ protocols (Wong, 2006, p.268). Bell also did not any experience with the drug Pavulon, which is the most controversial of the the lethal injection protocol, as it paralyzes the inmate but does not affect the sensations of pain or cognition. Therefore, all Pavulon does is paralyze the inmate, so that the inmate cannot verbalize if he is experiencing pain (Wong, 2006, p. 266). Similarly, Konarias et. al (2006) found that Texas and Virginia also had a rather appalling lack of experience and oversight when it came to their own death machines. Neither of these states kept a record of the creation of their protocols. After placing the intravenous lines into the inmate, the executioners would go behind a curtain or wall to remotely administer the drugs to the conscious inmate. Neither state directly observed, physically examined or electronically monitored the anesthesia, therefore there was no way of ascertaining if the anesthesia had worked. Neither state collected data, documented the anesthetic procedures, or conducted peer reviews on the administration of the anesthesia. Neither state collected data regarding the depth of the anesthesia, or loss of consciousness. Both states just assumed that the anesthesia worked because of the large amount that is administered (Konarias, 2006, p. 1412). The only objective data that can be used to discover whether inmates are being properly anesthetized is data concerning the post-mortem concentration of thiopental, and both Texas and Virginia have refused to disclose this information (Konarias, 2006, p. 1412). California also has very lax procedures to say the least. The execution team is selected according to the San Quentin Operational Procedure 770. According to this procedure, there is not even a specific qualification requirement for team members, and there is not a procedure in place to review on a continuous basis whether each individual team member is still able to participate in executions. No minimum qualifications or expertise is set for the team members. The selection of team members varies according to the individual warden. As for the background of team members, there are other troubling signs. Some of the execution team had criminal backgrounds, some were disciplined institutionally, and a team leader had suffered psychological problems and was receiving anti-depressants (Kreitzberg & Richter, 2007, p. 486). Some members of the execution team had never read Procedure 770, were unfamiliar with the drug names, and could not report the dosages they administered. This shows that, not only are the members of the execution team not medically trained, they do not even have adequate basic training in the procedure (Kreitzberg & Richter, 2007, p. 486). Because of all of the concerns surrounding the implementation of the lethal injection procedure, the judge in the Morales case, as cited above, decided that lethal injection as a method of execution violates the Eighth Amendment’s prohibition of cruel and unusual punishment. The reasons that the judge gave was that the procedure was screen unreliably and inconsistently by execution team members; the execution team was not properly overseen, trained or supervised, as shown by the fact that the team members did not have any knowledge about the risks involved with the drugs, or the nature or properties of the drugs, and that the execution team members acted indifferently to botched executions; record-keeping was kept inconsistently and unreliably, therefore there was not a way to determine if the appropriate amount of sodium thiopental was injected, and other critical data also was not properly kept; and the facilities were poorly designed, inadequately lit, and were overcrowded (Morales at 979). And California was just the tip of the iceberg. In Missouri, a dyslexic doctor who was a part of the lethal injection protocol also was the subject of 20 malpractice suits; in Kentucky, the protocol was allowed to be injected into the inmate’s neck, despite the fact that there was heated criticism, a doctor refused to do this, and this method was eventually deemed unconstitutional; a 2006 Florida execution took 36 minutes, during which the inmate appeared to be conscious an in extreme pain; and in North Carolina, a doctor who was supposed to have monitored the inmate’s conscious levels, later admitted that he had not done so (Denno, 2007, p. 4). The Morales decision was made after days of testimony by different witnesses, both expert and lay. Lay witnesses testified witnessing inmates dying by lethal injection who appeared to be in extreme distress. A veterinarian expert testified that he would not inject the drugs into a patient due to the fact that he needed to be in direct contact with the patient and he did not feel comfortable with the drug combination. An expert in the fields of pharmokinetics and pharmodynamics testified that the prescribed drug protocols did not adequately address the risk that the inmate would not feel pain. An anesthesiologist testified about the problems with the facilities, the training and selection of the execution teams, and the inadequate monitoring of the depth of anesthetic depth of the inmate. Dr. Brent Ekins, a pharmacologist stated that the second drug administered that causes paralysis does not anesthestize the inmate, but, rather, just causes paralysis. Dr. Mark Singler, an expert in clinical anesthesiology, testified that it would be terrifying for a conscious inmate to be injected with the drugs that are used to kill the inmate, and that it would be “unconscionable” to inject this inmate with the contemplated amount of potassium chloride (Kreitzberg & Richter, 2007, p. 482). Conclusion The use of lethal injection is supposed to be relatively painless, and this is the reason why it has become such an accepted method of execution. After all, witnesses to these executions state that the inmate in question appears to be passing peacefully. It turns out that this is all a farce, and that the only reason why these inmates appear to pass peaceably is because they are paralyzed and are therefore unable to verbalize the pain that they are feeling. And this is only the tip of the iceberg. States simply seem not to care that their inmates are suffering unspeakably in their death – this is evident by the appalling lack of oversight that states have over these procedures and the lack of expertise that the execution teams have. These teams are not medical personnel, and they do not have medical training. Yet the drugs that are used in this procedure demand that a competent medical professional administer them. This, however, is basically impossible, as medical professionals take an oath to keep people alive, not kill them. Because of the problems that are inherent in the way lethal injection is administered, there is a great risk that the inmates will experience not only unspeakable pain but terror. Although lethal injection has not yet been determined by the United States Supreme Court to be a violation of the Eighth Amendment prohibition on cruel an unusual punishment, there is no escaping the fact that, as it stands, the procedure is, in fact, a violation of the Eighth Amendment. The only way to get around this would be for medical personnel to actually administer the drugs in a proper way, and, since this is not going to happen, there is no redemption for the procedure and it will always be an Eighth Amendment violation. Sources Used Denno, Deborah. “When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us.” Ohio State Law Journal 63 (2006): 1-41. Denno, Deborah. “The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty.” SSRN. 1 March 2011. Ewart, Casey. “Use of the Drug Pavulon in Lethal Injections: Cruel and Unusual.” William and Mary Bill of Rights Journal 14.3 (2006): 1159-1192. Furman v. Georgia, 408 U.S. 238, 319 (1972). Koniaras, L., Zimmers, T., Lubarsky, D. & Sheldon, J. “Inadequate Anesthesia in Lethal Injection for Execution.” Lancet 365 (April 15, 2005): 1412-1414 (April 15, 2005). Kreitzberg, Ellen & David Richter. “But Can It Be Fixed? A Look At Constitutional Challenges to Lethal Injection Executions.” Santa Clara Law Review 47 (2007): 445-510. Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). Stanford v. Kentucky, 492 U.S. 361, 369 (1989). Wong, James. “Lethal Injection Protocols: The Failure of Litigation to Stop Suffering and the Case for Legislative Reform.” Temple Journal of Science, Technology and Environmental Law XXV (2006): 263-284. Read More