Lethal injection debate stalls executions in U.S.

The recent argument before the U.S. Supreme Court regarding lethal injection points to the surreal nature of the death penalty debate in the United States. The two death row inmates whose cases made it to the Supreme Court did not challenge the constitutionality of capital punishment, but rather the method of execution.

Ralph Baze was convicted of ambushing a county sheriff and his deputy and Thomas Bowling, Jr., was convicted of killing a husband and wife and wounding their 2-year-old son, They challenged Kentucky’s lethal injection procedure. The pair suggested that the three-drug cocktail that anesthetizes, paralyses and ultimately stops the heart violate the Eighth Amendment ban against cruel and unusual punishment.

The three drugs administered during executions are not unique to Kentucky. Virtually all of the 35 states that utilize lethal injection use the same three drugs.

Donald B. Verrilli Jr., the lawyer representing Baze and Bowling, conceded that a properly administered dosage, particularly the anesthesia, would provide for a painless death. However Verrelli argued “The pain inflicted here when this goes wrong is tortuous, excruciating pain under any condition.” Roy Englert Jr., representing the state of Kentucky, agreed that the three drug combination, if improperly administered, could cause excruciating pain.

Verrilli further suggested that a powerful dose of anesthetic alone would provide a painless and humane alternative. That’s right, using just the anesthetic could provide a humane and painless execution. So why use the three-drug cocktail? The answer may surprise you.

On behalf of witnesses

After the anesthetic is administered, pancuronium bromide and potassium chloride are introduced into the body. The second drug paralyses the inmate, the final drug stops the heart. According to The Wall Street Journal, administering the second drug is for the sole purpose of avoiding unpleasantness for those observing the execution. Representatives of the victim’s family, the media and law enforcement are invited to witness all executions. Without the paralyzing agent the witnesses would be exposed to the uncomfortable sight of the inmate’s body spasms and muscle contractions as he drifted into cardiac arrest.

If the use of a lethal dose of anesthetic would provide a more humane death slumber, why not abandon the three-drug cocktail and adopt death by lethal anesthetic? Engler counters that the length of time to carry out the execution would lengthen the process from a few minutes to as long as half an hour. Justice John Paul Stevens interjected, “I’m terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain and seems to be almost totally unnecessary.”

As the argument unfolded before the Supreme Court it became apparent that the controversy was not really about the machinery of death. Obviously if the parties are arguing about only the method of execution, they have conceded the legitimacy of the death penalty. If both sides agree that the method, if properly administered, comports with the constitution, then the remaining concerns relate to those other than the condemned. The speed with which the execution is carried out and the level of unpleasantness thrust upon those witnessing the execution have nothing to do with the condemned.

Send back to Kentucky?

Some justices expressed a desire to send the case back to Kentucky to conduct a trial to determine which method of execution is most humane. Justice Antonin Scalia balked at the suggestion of a lengthy trial. “I’m very reluctant to send it back to the trial court,” said Scalia. “So we can have a nationwide cessation of all executions while the trial court finishes its work and it goes to another appeal to the state Supreme Court and ultimately — well, it could take years.”

After the Supreme Court agreed to hear the cases of Baze and Bowling, the court granted numerous stays of execution. More than 40 death row inmates have received stays of execution because of lethal injection challenges. As a result, last year saw the fewest executions nationwide since 1994.

Questions posed by Chief Justice John G. Roberts during the oral argument highlight a more fundamental concern — when will the challenges to lethal injection end? He suggested that if the court agreed that a single dose of anesthetic was more humane, the court would be inundated with challenges. Prisoners condemned to death would argue that humane executions take too long or that executions without pancuronium bromide are less dignified because muscle contractions are no longer suppressed.

As the Supreme Court ponders whether lethal injection can be humane to both the executioners and those to be executed, a delay, which is the ally of the condemned, seems inevitable. If the high court does anything less than declare Kentucky’s current method of execution constitutional, the 65 percent of Americans who support the death penalty can be assured that it will be a long time, if ever, before another convicted murderer is executed.

X Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. He can be reached at matthewmangino@aol.com.