Lethal Injection: The New Frontline Against the Death Penalty

October 7, 2009 | | Comments Off on Lethal Injection: The New Frontline Against the Death Penalty

Over the years many different strategies of challenging the constitutionality of the Death Penalty have made their way through the courts. The latest line of attack is focused on lethal injection. Last year, in April, 2008 the Supreme Court came down firmly on the side of upholding lethal injection. In Baze v. Rees the Supreme Court held that the current practice of administering a cocktail of three drugs was not cruel and unusual. The main concern in Baze was the use of sodium thiopental, the first drug administered, which anesthetizes the prisoner. The Supreme Court stated that the presence of executioners with a minimum level of professional experience in place IV lines and the presence of the prison warden provided adequate safeguards for the practice of lethal injection. However, like many issues decided by the Supreme Court, this is far from the end of the debate.

On September 15, 2009, prison officials on Ohio halted an execution after technicians tried for over two hours to find a suitable vein to maintain an IV. Ohio Governor Ted Strickland then postponed the execution of Rommel Broom and a federal judge issued a restraining order to keep Ohio from executing Mr. Broom. The Federal District Court for the Southern District of Ohio will hear Mr. Broom’s testimony about his botched execution, which his lawyers are describing as torture and cruel and unusual. Mr. Broom was stuck with a needle over 18 times. He even tried to help the execution team by pointing out veins, and massaging his arms to try and keep a vein open. At one point the needle may have struck bone.

At the same time there are growing objections in the medical community to lethal injection. The American Medical Association, American Nurses Association and American Society of Anesthesiologists all oppose their members from participate in executions. Making it all the more likely that people with less and less medical training will take part in lethal injection executions. Ohio uses emergency medical technicians in their executions.

The question becomes: why does lethal injection matter? The answer is simple, without the use of lethal injection it would be very hard for the United States to execute prisoners. Since 1977 936 out of 1107 inmates executed in the United States were by lethal injection. Since 2000 only five executions have used any other method. Those executions were all by the electric chair. Some states still have the firing squad, hanging, or the gas chamber as options available for execution, but only 16 executions have taken place using these methods since 1977.

Does this mean that if states start banning lethal injection one by one until a majority of states do not use the practice the Supreme Court will have to find it unconstitutional? This scenario seems highly unlikely. The Baze case did not challenge the constitutionality of lethal injection directly. Its focus was on the use of three drug cocktail. This cocktail usually includes sodium thiopental (a barbiturate), pancuronium bromide and potassium chloride, which are used to stop the heart and arrest breathing. There are other ways to accomplish lethal injection, including using a single large does of barbiturates. If history has shown us nothing else about the death penalty it is that there are many creative ways to kill a person. Hanging and firing squads were phased out when people found them too cruel and were replaced by the electric chair and gas chambers. Lethal injection was the next step in the process of trying to make execution more humane.

The death penalty will always be in conflict with our notions of cruel and unusual punishment. It will always be the most brutal and most final punishment we can impose. There will never be a way to make it completely humane because it is inherently inhumane. However, opponents of the death penalty are wishing in vain if they think the Supreme Court will ever effectively overturn the death penalty by banning lethal injection. Even the Supreme Court it bans the current practice other methods will be devised. Doctors and other medical professionals will continue to take part in executions despite the objections of the AMA. The road to ending the death penalty in the United States runs through the various statehouses and not the Supreme Court. Only when a majority of the states ban the death penalty completely will the court take a serious look at stopping the practice once and for all. While the efforts to block lethal injection are important in individual capital cases, and matter very much to the individual inmates involved, they are probably a detour in the overall fight against the death penalty.

Photo courtesy of Flickr user Andres Rueda.

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