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March 18, 2008

Constitutional Cocktails: The Lethal Injection Debate Explained

By Dan Jones,
ACLU Publicity Co-Chair

On March 5, the ACLU chapter of the University of Michigan Law School hosted “The Constitutionality of the Three-Drug Cocktail: The Lethal Injection Debate,” a panel discussion of pending Supreme Court case Baze v. Rees. Professor Kim Thomas, moderator, was joined by Columbia University Hospital Anesthesiologist Dr. Mark Heath and accomplished capital punishment defense litigator George Kendall.

Dr. Heath opened his remarks by disclosing that his research on lethal injection has made him an opponent of its use. He then described the four-step process by which lethal injections are administered. First, an I.V. is inserted into the prisoner. Dr. Heath explained that inserting I.V.s into prisoners isn’t as simple a procedure as one would guess. Numerous slides showed the failed IV injection points on the skin of executed prisoners. One prisoner endured up to nineteen attempts. Dr. Heath speculated that the difficulty of inserting I.V.s into prisoners can be attributed to a number of factors, including the prisoner’s anxiety, the cold temperature of the room where the procedure takes place, and, oftentimes, the incompetence of the personnel who do the task.

The second step of the process is the injection of the drug thiopental, a general anesthetic. Even though the guidelines for administering thiopental call for a dose strong enough to lead to long-term unconsciousness, insufficiently low dosages frequently result from errors in dosage calculation or drug administration. Dr. Heath used as an example an executed prisoner with a post-mortem dosage in his blood so weak that there was a 95% likelihood that he was conscious as the next two drugs were administered.
The third step of the process is the injection of the drug pancuronium, a paralytic which restricts all voluntary movement but does not affect brain function. If pancuronium is coupled with an insufficient anesthetic, a prisoner may experience suffocation (as breathing is a voluntary movement) before the potassium takes effect, or may experience the excruciating pain of lethal injection without being able to manifest his suffering in any way. Unlike the administration of the anesthetic, the purpose of this step is not to benefit the prisoner, but solely to give an appearance of serenity to observers of the execution. Dr. Heath characterized it as a “cosmetic” procedure.

The final step of the process is the injection of the drug potassium, which kills the prisoner. According to Dr. Heath, a prisoner who is conscious while having potassium injected into his body would feel as if a blowtorch had been applied to half his torso.

Dr. Heath’s final point was that the personnel who carry out lethal injections are often grossly unsuited for the task. However, most physicians would decline invitations or requests to participate in lethal injection procedures.

George Kendall opened his portion of the discussion by emphasizing just how narrow the legal questions involved in Baze v. Rees are. First is the question of which of two competing standards should be used to determine whether a punishment is cruel and unusual in violation of the Eighth Amendment: whether there is an unnecessary risk of pain and suffering, or whether there is a substantial risk of wanton infliction of pain. Second is the question of whether the program in Kentucky runs afoul of the proper standard. Kendall speculated that, even if the Court finds the Kentucky system unconstitutional, some states will not employ good faith in their efforts to change their systems so as to conform to the judgment. Kendall closed his lecture by pointing out that most state capital punishment programs have been designed by small numbers of individuals in closed rooms, insulated from the democratic process. He thinks that a realistic goal for capital punishment defense litigators is obtaining the most humane means of execution for their clients.

Finally, the panel compared the standards states impose for euthanizing animals to those used for executing human beings. Though many states ban the use of paralytics for the euthanization of animals, many of the same states require their use for the execution of human beings. The panelists expressed hope that states will meet, or perhaps even exceed, minimum veterinary standards in the execution of human beings.