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Lethal Injection and Moral Seriousness


An interesting article by Elizabeth Weil on the strange origins of the current formula for lethal injections now under challenge at the Supreme Court:

Hoping to coat the nastiness of killing with a veneer of medical respectability — and also hoping to save the state the expense of fixing its electric chair — Dr. Jay Chapman, then the chief medical examiner in Oklahoma, devised the three-drug cocktail in 1977. Dr. Chapman has described himself as “an expert in matters after death but not in getting people that way,” and he has acknowledged never having done any research on how best to kill a man. Nonetheless, some version of his three-drug cocktail is now used by the federal government and the 37 states that kill inmates by lethal injection. (Nebraska, the 38th state with a death penalty, uses the electric chair.)

The three-drug cocktail is meant to mimic the induction of general anesthesia and it works like this: The execution team inserts an IV line into the condemned prisoner and then delivers a dose of sodium pentothal, an “ultrashort-acting barbiturate,” intended to render the inmate deeply unconscious. A second drug, pancuronium bromide, a muscle relaxant, then paralyzes all skeletal muscles including the diaphragm. (This keeps the inmate from gasping, moaning, flopping around on the gurney or otherwise disturbing the witnesses; it also keeps him from breathing.) The third drug, potassium chloride, stops the heart.

In theory this method should kill inmates quickly and painlessly. The problem is that in practice lethal injections are botched routinely. In May 2006, in Ohio, Joseph Clark raised his head in the middle of his own execution to say, “It’s not working.” In December 2006, Angel Diaz, in Florida, grimaced on the gurney for 26 minutes. He sustained 11-inch and 12-inch chemical burns on his left and right arms respectively, and took 34 minutes to die.

So, basically, we have a set of procedures that don’t always work, that we literally consider insufficiently humane to use on animals, and were developed by someone with no relevant expertise in the field — and yet they were quickly adopted by every state. And as Weil points out, the second, paralyzing drug — which prevents us in many cases from seeing if the prisoner was executed in intense pain — is part of the formula to exempt witnesses from having to see the consequences of the state’s action, which is an especially bad reason to do it.

Also interesting is this case, in which various public officials have reacted in a fury against a judge in Georgia who has taken the radical step of requiring the state to provide adequate resources to a defendant in an extremely complex capital case. This is part of a trend towards death penalty prosecutions that are failing because the state is unwilling to provide the necessary resources, which rather tends to undermine claims by death penalty advocates about its importance to criminal justice. If the death penalty has a powerful deterrent effect, reflects the Moral Seriousness of the Community. etc. etc. then spending the resources necessary to ensure a fair process seems relatively trivial in the context of what the state spends. That many advocates aren’t willing to face these choices simply reinforces my assumption that the death penalty in fact doesn’t accomplish much of anything that imprisonment doesn’t.

And even if (like me) you think that the Constitution does not categorically forbid the death penalty for first degree murder, both of these cases are instances where judicial intervention is appropriate. Assuming arguendo that the death penalty is permissible, it has to be carried out in manner consistent with the Sixth, Eighth, and Fourteenth Amendments. If states can’t be bothered to design a means of execution that minimizes the possibility of someone being tortured to death, or to provide the resources necessary to mount a competent capital defense, then it shouldn’t be allowed to execute prisoners at all.

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