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What do we really know about lethal injection?

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posted on 2023-07-27, 17:27 authored by Gaia Lodovici

In 1972, Justice Thurgood Marshall postulated a set of hypotheses in the decision of Furman v Georgia.[1] These hypotheses contend that (1) the American public are ignorant about the administration of the death penalty, (2) if they were to be informed, they would not support the capital punishment, and (3) if the main reason for the support of the death penalty is retribution, then increased knowledge about it will have little effect on their opinions on it.[2]

The lethal injection is virtually the only method of execution used in the United States, with this practice being authorized in 36 out of the 37 states with the death penalty.[3] While it is well-know that the capital punishment in the United States is administered through lethal injection, the specific procedure involved is often unknown or misunderstood. This misconception allows many to consider this practice humane and free of pain, an opinion supported by the Supreme Court of the United States in 2008 with Baze v Rees.[4]

To fully understand the cruel and inhumane component of the lethal injection, we must look at its history. Capital punishment statutes were first struck down by the Supreme Court in 1972 in the previously mentioned Furman v Georgia case because of their arbitrariness and the capricious nature of their application (e.g., electrocution).[5] However, this decision was partially reversed in Gregg v Georgia (1976), where the Court held that, granted certain modifications, executions could resume.[6] With this decision came the development of the “lethal cocktail,” started by Oklahoma State Representative Bill Wiseman.[7] Unsurprisingly, Oklahoma was the first state to adopt the practice of lethal injection in 1977.[8] Dr. Jay Chapman and Dr. Stanley Deutsch were the two doctors who played a main role in the creation of the lethal injection statute.[9] In fact, it was Dr. Chapman who proposed the lethal injection protocol described as being “a lethal quantity of an ultra-short acting barbiturate or other similar drug in combination with a chemical paralytic to cause death […] [he] didn’t care which drug killed the prisoner, as long as one of them did.”[10] The protocol, therefore, started as a two-drug process (sodium thiopental and a paralytic agent).[11] It is unclear why the third drug that induces cardiac arrest (potassium chloride) was introduced.[12] However, Dr. Chapman justified it by saying: “Why not […] you wanted to make sure the prisoner was dead at the end, so why not just add a third drug. I didn’t do any research… it’s just common knowledge. Doctors know potassium chloride is lethal. Why does it matter why I chose it?”[13]

The use of potassium chloride as part of the procedure was later confirmed as a result of the contribution of self-proclaimed “engineer” Fred Leuchter, who graduated from Boston University with a BA in history without ever having taken an engineering course.[14] During his death penalty career first in Tennessee and then New Jersey, Leuchter gathered secondary data on potassium chloride’s lethality from experiments on pigs, to which he later theorized dosages for human executions.[15] As a result of these developments, the lethal injection protocol nowadays typically uses three chemicals: (1) sodium thiopental, the anesthetic; (2) pancuronium bromide (or Pavulon), the paralyzing agent designed to induce suffocation by paralyzing the diaphragm; and (3) potassium chloride, the second “killing” drug that induces cardiac arrest.[16] Now, if the first drug works, then the execution is supposed to result in a painless death.[17] However, we see the failure of the anesthetic in so many cases that it becomes very challenging to describe this practice as pain-free.

The reason we see the first drug failing so often is because of very poorly trained teams (of prison staff, not medical personnel) that do not allow enough time for the drug to take effect or because of a bad IV line, which negates the effect of the anesthetic.[18] Medical personnel generally refuse to conduct lethal executions because of ethical guidelines followed by doctors, nurses, and E.M.T.s, leaving incredible room for error.[19] This said, when the anesthetic does not take effect, then the subsequent effects of the second and third drug result in excruciating pain, which is inhumanely unable to be portrayed by the inmate because of the paralyzing drug.[20] Additionally, even when the first drug is administered correctly, its effects are very short. In fact, legal scholar Deborah Denno, who has testified in many lethal injection trials, noted that “sodium thiopental – an ‘ultra-short’ acting drug […] typically wears off very quickly […]. The ‘fast acting’ aspect of sodium thiopental can have horrifying effects if the inmate awakens while being administered the other two drugs.”[21]

It is now easy to conclude that the lethal injection is neither human nor uncruel. It is time to fix this extreme misconception about the practice and educate the public on what our capital punishment system is really doing to our inmates. There currently is no possible method of execution that can be guaranteed to be painless, which makes this practice not only unconstitutional, but extremely immoral and evil.

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Notes

This Article is brought to you for free and open access by the Juris Mentem Law Review. This article has been accepted for inclusion in the Juris Mentem Digital Collection. The Digital Collection is edited by Juris Mentem Staff but is not peer-reviewed by university faculty. For more information, visit: https://www.american.edu/spa/jlc/juris-mentem.cfm Questions can be directed to jurismentem@american.edu

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