Apr. 25, 2006 – Mounting evidence that Americaâ€™s favored method for state-sponsored execution of prisoners may cause its victims excruciating pain has infused fresh rigor into at lease one narrow aspect of the death-penalty debate.
Defense attorneys and medical ethicists are squaring off against state executioners in a fight for judicial and public opinion on whether lethal injection constitutes cruel and unusual punishment.
Meanwhile, many of the leading death-penalty abolition groups are staying above the fray, saying that rather than discussing how best to put people to death, the nation should be discussing whether to kill them at all.
On Monday, the international group Human Rights Watch (HRW), which categorically opposes the death penalty, released a report documenting instances in which the three-drug combination used to kill the majority of Death Row victims may have caused and masked horrible pain before death.
"Prison officials have been more concerned about sparing the sensitivities of executioners and witnesses than protecting the condemned prisoner from pain," Jamie Fellner, HRWâ€™s US program director and report co-author, said in a statement accompanying release of the findings. "They are more concerned with appearances than with the reality."
The HRW report comes as the constitutionality of lethal injection is under scrutiny in courtrooms across the nation and at all levels of the judicial system. The Supreme Court is set to hear arguments Wednesday on whether Death Row inmates can challenge lethal injection as a violation of civil rights.
without proper administration of the initial anesthetic, the procedure could cause prisoners to feel suffocation and a fiery pain coursing their veins.
But to David Elliot, communications director for the National Coalition to Abolish the Death Penalty (NCADP), debating the form an execution takes is to "tinker with the machinery of death" instead of discussing whether killing is sound public policy.
"We are concerned that debating the most humane way to execute a person diverts from the more fundamental question of whether we should be executing people to begin with," Elliot told The NewStandard. "The unhappy fact of the matter is that there is no kind and gentle way to kill someone."
Lethal injection was adopted by Oklahoma in 1977 as a more humane option than other methods of capital punishment, such as electrocution, chemical asphyxiation, hanging and firing squad. However, HRW found that the Oklahoma medical examiner who developed the three-drug regimen currently used by most states had no expertise in pharmacology or anesthesia.
Since then, 37 states have started using lethal injection to execute felons, and in at least 19 states the method is the only legal form of capital punishment. Lethal injection killed every death row victim in 2005.
"Drawing on its own research and that of others, Human Rights Watch has found no evidence that any state seriously investigated whether other drugs or administration methods would be â€˜more humaneâ€™ than the protocol it adopted," wrote the reportâ€™s authors.
â€œThe issue for us really is not the question of how we kill our prisoners, but that we do it at all.â€
The report details how the three drugs are supposed to work in tandem, first killing pain, next immobilizing the inmate and finally stopping the victimâ€™s heart.
But without proper administration of the initial anesthetic, the two chasers â€“ pancuronium bromide and potassium chloride â€“ could cause prisoners to feel suffocation and a fiery pain coursing their veins, according to the report. Critics are concerned that the anesthesia â€“ which like the rest of the process is never performed by a licensed physician, let alone an anesthesiologist â€“ is often mishandled.
In their study, HRW researchers found evidence in multiple states that executed people may have felt that pain.
For instance, John Daniels, who North Carolina executed on November 14, 2003, suddenly started to convulse." The account says Daniels sat upright, and "witnesses could hear him gagging through the glass that separated him from them. After laying down again for a brief time, he sat up, gagged, and choked, while his arms appeared to be struggling underneath the sheet covering him."
Challenging the three-drug protocol in court, the American Civil Liberties Union has argued that the second drug, which paralyzes voluntary muscles, may be acting as a "chemical curtain," hiding whether the inmate is suffering.
In a statement on the ACLU of Northern Californiaâ€™s court challenge to lethal injection last year, Legal Director Alan Schlossersaid, that method "would interfere with the publicâ€™s right to know and could conceal cruel or unusual punishment by the state, which is forbidden by the Constitution."
Schlosser contended that "the First Amendment precludes the state from sanitizing the execution process by administering a drug that appears to have no purpose other than to prevent the public and the press from seeing whether the use of lethal injection causes pain."
Abe Bonowitz, director of Citizens United for Alternatives to the Death Penalty (CUADP), said the evidence suggesting the pain experienced by executed prisoners calls into the question the whole justification for switching to lethal injection from other forms of execution.
"The issue for us really is not the question of how we kill our prisoners, but that we do it at all," Bonowitz told TNS.
The media frenzy over the recent cases challenging lethal injection, however, has focused mainly on possible alternatives to the three drugs currently used or on devices that could help states circumvent recent court rulings in California and North Carolina. Those rulings require licensed medical personnel administer the drugs in order to make sure the prisoner is properly anesthetized. Most medical professionals have refused to directly administer the drugs on the grounds that doing so would violate their ethical code.
Though Bonowitz said he does not think the court challenges are actually going to stop lethal injection, he thinks it is a positive step in "forcing people to actually look at the process and understand exactly what we are doing."
But neither CUADP nor NCADP are actively involved in the lethal-injection lawsuits. For Elliot, itâ€™s a matter of principle.
"If you focus on saying â€˜this mode [of execution] is goodâ€™ or â€˜this mode is bad,â€™ then you are almost conceding the point, and weâ€™re simply not going to go there," he said.