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Lethal Injections in America: Torturous or Humane?

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Helen Thompson

America has recently hit the headlines for using untested drugs of unknown origins in lethal injection executions. This has resulted in several botched executions. There has been great controversy over whether the use of these drugs amounts to cruel, inhumane or degrading treatment, or—potentially—torture. If it does, it would constitute a breach of the Eighth Amendment to the United States Constitution, which prevents the infliction of cruel and unusual punishment, as well the Convention Against Torture, to which America is a signatory party.  There are also issues surrounding the state’s right to keep secret the source of the drugs that they are using. Many states have passed laws declaring that they are permitted to restrain publication of this information. Prisoners have been trying to challenge the constitutionality of these laws, claiming that they have rights under the First Amendment to know what drugs will be used to kill them.

Background

In 2011, the Council of the European Union passed regulation 1352/2011 (Commission Implementing Regulation 1352/2011 [2011] OJ L 338/31). Several European Union pharmaceutical companies had been complaining that their products were being used for capital punishment and expressed their opposition to this use. The regulation banned exports of all goods from the EU where their only purpose was for facilitating capital punishment, in accordance with the principles of the Charter of the Fundamental Rights of the European Union. The regulation states that the “Union disapproves of capital punishment in all circumstances and works towards its universal abolition” (at [2]).

Most states that use lethal injections had a previous process that involved the use of three drugs. Sodium thiopental was first injected to induce unconsciousness. It was then followed by pancuronium bromide, which paralyzes the diaphragm and prevents respiration. Finally, potassium chloride is administered to produce cardiac arrest. If done properly, the inmate should be unconscious after the first drug and consequently should not feel any pain.

Current situation

Since the ban, the lethal injection states have slowly been running out of their stocks of the normal drugs. Instead, they have been forced to turn to new alternatives, even though these may be untried and untested. Most states have begun using drug varieties from unnamed pharmacies within America in order to continue executions.

This has led to the controversy surrounding the procedure that has hit headlines in recent months. Since the start of the year, several people have been executed by the new method, and some of those executions have caused great outcry.

Michael Lee Wilson was executed in January in Oklahoma. Shortly after he was injected, he stated, “I feel my whole body burning.” However, he did not show any other signs of pain.

When Dennis McGuire was executed in Ohio, the accompanying scenes were horrific. A witness described how his stomach swelled up while he “struggled and gasped audibly for air”, clenching his fists for the entire duration of the execution. The witness was certain that he “suffered greatly”. The execution lasted 26 minutes, far longer than expected for normal executions.

An enormous outcry was provoked by the execution of Clayton Lockett, who, in apparent agony, took around 43 minutes to die. Witnesses described how he thrashed and struggled violently against his restraints after the injection, while groaning. The scene was so bad that the blinds over the execution chamber were lowered. Lockett eventually died of a heart attack. It is thought that the vein into which the drugs were injected collapsed and so the drugs leaked into the surrounding tissue.

Barack Obama described the result as “deeply troubling”, while the UN Human Rights office condemned it as potentially cruel, inhumane and degrading treatment. The Justice Department is now carrying out a review on execution procedures across the country, both at federal and state level. It was later reported that the drugs used on Lockett are banned for use on animals because they are thought to cause terrible pain.

These incidents highlight that there are serious problems with the drugs being used.

The judicial view

The US Supreme Court ruled on the constitutionality of lethal injections in 2008 in Baze v Rees 553 U.S. 35 (2008). The Court upheld the 3-drug method of lethal injection as a legitimate form of execution, denying that it violated the Eight Amendment. Justices Ginsburg and Souter dissented, stating that the method used by Kentucky created “an untoward, readily avoidable risk of inflicting severe and unnecessary pain.” In their dissent, they held that the execution team did not have to determine adequately whether the inmate was unconscious before injecting the second and third drugs. Since this decision the method of lethal injection has changed, so there is potential that this case could be invalidated on a later challenge.

Two main legal issues have arisen from the recent use of the new drugs. One concerns the Eighth Amendment and whether the use of the drugs amounts to cruel and unusual punishment. The other concerns the First Amendment and the right to know from where the drugs come. These rights, the First Amendment in particular, have to be weighed against the state’s right not to disclose the source of the drugs.

The judiciary has been largely opposed to declaring lethal injections unconstitutional. There have been quite a few cases brought in the last few months, and in only one circumstance has a stay of execution been granted. That happened at the end of May in Bucklew v Missouri 572 US (2014). In that case, Bucklew proved that he had a serious medical condition that made it more likely that he would suffer additional pain during the execution process. The Supreme Court agreed that more time was needed to investigate the potential effect of the drugs on him (see Mark Berman “Missouri execution halted by Supreme Court justice after appeals court back and forth”).

Notwithstanding this case, the courts have generally held that there is no evidence the lethal injection drugs will cause cruel or torturous treatment. The courts have also held that the right of the state to keep the source of the drugs secret is greater than that of the prisoner to know the source of the drugs that will be used to execute him or her.

Nonetheless, there have been some very powerful dissents by appellate court judges against these decisions. Judges of the Supreme Court and the federal appeal courts have spoken out strongly against the decisions of their peers. In In re Lombardi No 13-3699, 2014 WL 288937 at *8 (8th Cir. Jan 24 2014), the dissenting judges held that the prisoner’s right to investigate the drugs’ origins was greater than the state’s right to secrecy. A month later, the minority in the same court, in Taylor v Lombardi, stated that the lack of information available about the drugs meant that it was conceivable that the prisoner would suffer extreme pain during the process since so little was known about the drugs and where they came from. This case was appealed to the Supreme Court where Justices Ginsburg, Sotomayor and Kagan dissented, agreeing with the appellate court decision.

The courts can be criticised for their general unwillingness even to accept that there is potential for the drugs to cause severe pain and suffering. The majority judges seem to disregard this as an issue, potentially because they do not see it as a problem given the prisoner will die shortly anyway. It is true that insufficient factual evidence may be presented in the courts for judges to decide definitely whether extreme pain and suffering could be caused, but the judges should be able to accept that the possibility is there, and to issue a stay while the drugs are investigated further. This becomes even more important when one considers that these drugs are banned for use on animals.

At the moment, it is unclear whether these drugs generally cause extreme pain and suffering, or whether the above executions were highly unusual exceptions. The courts have certainly been reluctant to admit this. Nonetheless, it must be noted that most of these cases took place before the disastrous execution of Clayton Lockett. It will be interesting to see if that has any effect on future decisions of the court when considering whether the drugs are likely to cause extreme pain and suffering. Hopefully, the reviews currently being conducted into the execution procedure will provide a clearer answer that may help the courts.

The future of lethal injections in America?

At the moment, it seems likely that American states will continue to use untested drugs unless they are ruled unconstitutional, despite the associated issues.

Nonetheless, the outcry has provoked some change, although it may not necessarily be for the better. Some states are now considering changing their main mode of execution and returning to previously used methods. The main propositions are the electric chair and the firing squad. Tennessee has now passed a bill that allows the use of the electric chair again, with the support of 56% of voters (see “Tennessee brings back electric chair during lethal injection drug scarcity”). Some states, such as Virginia and Alabama, already allow the electric chair if the prisoner chooses it. Other states are considering a return to firing squads, which have only been used in three civilian executions since the end of the Civil War. Oklahoma already allows the use of firing squads if lethal injection has been declared unconstitutional by the judiciary. Missouri is currently considering a bill allowing the firing squad, with it being described as “the most humane yet most economical” solution for the state by a state representative (see Regan Morris “Will firing squads make a comeback in the US?”).

While the firing squad, being effectively instantaneous and pain-free, could be seen as a more humane solution to the problem, there is probably little difference between the humanity of the electric chair and current lethal injections.  The electric chair was abandoned due to failures to kill instantly. There were several cases where death required multiple shocks and even cases where the execution went so badly wrong that the prisoner’s head was set on fire. It basically raises the same issues as are being debated at the moment with lethal injections.

It is to be hoped that soon America will outlaw the use of these drugs until they have been properly tested, or in the event that they cannot be used, a more humane solution may be found. That the death penalty is still used is a travesty. That it is used in such an inefficient and disastrous way only increases its abhorrence.

Helen Thompson is a BA/LLB(Hons) student at the University of Auckland.


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