It’s Not Whether to Kill, but How

By Elizabeth Weil, New York Times

November 4, 2007

When the Supreme Court stayed an execution last week for the third time in
October, making the month the first in nearly three years with no executions,
the justices sent a clear message to the states: Don’t execute anybody until we
have decided Baze v. Rees, a death penalty case scheduled to be argued in
January.

This de facto moratorium on executions might sound like great news for death
penalty opponents. And in the sense that the country will probably not execute
anybody for perhaps seven more months, it is. But at stake in the Baze case, as
in the dozens of other death penalty cases wending their way through the courts,
is not the constitutionality of capital punishment. What’s at stake is the
constitutionality of how the state kills inmates, and whether or not the method
being used* known as the “three-drug cocktail” * adequately protects the
condemned from undue pain and suffering. Those protections come under the Eighth
Amendment of the Constitution, which bars cruel and unusual punishment.

Recently, a United States District Court judge in Tennessee ruled that the state
had, in fact, violated the Eighth Amendment by disregarding the “substantial
risk” that the three-drug cocktail would cause “unnecessary pain.” Those risks
could have been addressed by additional safeguards, the judge said, or by
switching to a straight no-chaser consisting of an overdose of a single
barbiturate, the method recommended by a state study commission.

The single-drug procedure is already used routinely in the United States, on
animals. It’s what is euphemized by the phrase, “I had to put my pet to sleep.”
One possible result of the upcoming Supreme Court case is that execution
protocols could switch from the standard three-drug cocktail to the single-drug
format for animals recommended by the American Veterinary Medical Association.

The history of capital punishment in the United States has been filled with a
peripatetic search for a method of killing that doesn’t offend a blood-thirsty,
yet tough-on-crime, yet squeamish public. Nooses, if the drop is too short,
leave bodies twitching; if the drop is too long, heads pop off. Electric chairs
result in horrible odors and burns. Firing squads are too violent. Gas chambers
take too long and are too grotesque. (One 1992 lethal gas execution in Arizona
caused an attorney general to throw up and a warden to threaten to quit if he
had to execute by that method again.)

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.

The reasons for this include bad personnel selection (dyslexic doctors, guards
with histories of drug and prisoner abuse) and inadequate training for death
teams. (“Training? We don’t have training, really,” one team member from San
Quentin in California said under oath.)

Virtually no respected physicians participate in executions, as doing so
violates medical ethics. Supporters of the three-drug method, like Dr. Mark
Dershwitz, a professor of anesthesiology at the University of Massachusetts
Medical School, contend “you don’t need a lot of fancy initials after your name”
to start and maintain an IV line. But while that’s true in most settings,
securing IV access can be tricky when the person assigned to the job is
extremely anxious, or when the person on the receiving end is cold, nervous,
obese or has a history of IV drug use, not an unlikely set of problems in an
execution suite.

To complicate matters, pancuronium bromide, the paralytic agent, prevents
execution team members from knowing if the inmate is in pain, since he can’t
speak or move. And the third drug, potassium chloride * the killer * is reported
to cause an excruciating sense of burning in the veins. So a very painful death
is a perfectly plausible outcome.

In the last year, a Federal District Court judge in California, as well as the
Tennessee commission, conducted full reviews of their states’ lethal injection
protocols. Both concluded that either their departments of corrections needed to
ditch the three-drug cocktail and kill inmates with a massive dose of a single
barbiturate, or execution teams needed to be better trained. Thus far no state
has opted for the single-drug format. The reluctance stems from several causes,
including the simple fact that no state as ever used a single-drug overdose to
kill an inmate before, and experts are worried that killing an inmate with one
drug instead of three might take more time, and that might be unpleasant to
watch.

Whether states will be forced to go the single-drug route and thus give to
condemned prisoners the same consideration veterinarians give household pets
will ultimately come down to the Supreme Court’s interpretation of the Eighth
Amendment. The central question of Baze is: Does the Eighth Amendment bar an
execution method that creates an unnecessary risk of pain and suffering, or does
it merely protect inmates against the wanton infliction of pain and suffering?

If it’s the former, then the three-drug cocktail is probably unconstitutional,
because states would not have a compelling reason to continue to use it. But if
it’s the latter, then states could probably stick with the old deathly recipe,
as long as someone on the execution team had the fortitude, after administering
the first drug, to shake the inmate or look in his eyes, or otherwise make a
passing attempt to see if the anesthetic took.