Executions and the Constitution

By Mat Wadsworth

What method of execution should states use to comply with the Constitution’s ban on cruel and unusual punishment? It is a question that is not asked nearly enough by either side of the death penalty debate. To be clear, this article is not an endorsement of the death penalty. Whether or not the death penalty should be imposed is an important discussion. However, the debate does not stop there. Completely separate from the imposition of the death penalty is the mechanics of carrying out that sentence. The execution itself is really where the Constitutional debate is to be had. The Constitution’s ban on cruel and unusual punishment is quite clearly a limitation on method, not on sentence.

Note: I know that this post contains primarily case citations rather than internet citations, and that this may make the citations more difficult to follow up on for some. However, given the controversial nature of the subject matter and the proliferation of questionable internet sources on all sides of this issue, I tried to stick to the most reliable or at least the most relevant legal sources.

Too many death penalty advocates forget that the 8th amendment bars cruel and unusual punishment. There is no reason to fret too much about the execution process because there is “no desire to humanely respect those that are inhumane .” Whether principles of retribution or fairness call for the death penalty to be painful is a philosophical debate, but the legal debate is resolved by the 8th amendment. “The punishment of death is not cruel within the meaning of that word as used in the Constitution,” but anything “more than the mere extinguishment of life” is cruel and unconstitutional.[1]

Similarly, too many death penalty opponents get locked into an all-or-nothing position that the death penalty is wrong in all circumstances. Any execution is unjust, so there is no reason to discuss how it is performed. Whether or not the death penalty is ever acceptable in civilized society is debateable, but the Constitutional question has been resolved.[2] The Supreme Court holds that the language in the 5th amendment clearly establishes that the founders contemplated capital punishment as a Constitutionally acceptable sentence.[3] The 5th amendment sets procedures to “answer for a capital, or otherwise infamous crime” and prohibits deprivation of “life… without due process of law.” More importantly, death penalty opponents need to remember that an all-or-nothing fight is clearly senseless in any other area of law, and it makes no sense here either. A defense attorney continues to fight for his client through sentencing, he does not give up after the verdict is read. A minor injustice is an injustice, but it is still worth fighting to avoid a major injustice.

Most obviously, the question is not asked simply because it is a dark and deeply disturbing conversation that offends the sensibilities. We are plotting to kill another human being. There is no way to avoid that fact, and no way to make the conversation pretty. We are plotting to kill a human being, likely in the prime of his or her life. The mechanics of that process are not easy to discuss, regardless of one’s opinion on whether or not the condemned person deserves to be executed for his or her crimes. Thousands of people are on death row in the United States, and dozens of them will be executed every year. No matter how gruesome the conversation, that process must be examined if there is any hope of forcing it to comply with the Constitution.

The United States has used variations of five methods of execution since the signing of the Constitution, and all five have been used since Gregg reinstated the death penalty in 1976. Hanging and the firing squad have been used throughout US history. States began switching to electrocution in the late 19th century in an attempt to modernize the procedure, and some state courts even found that electrocution was more humane than hanging.[4] By 1949, 26 states had adopted electrocution, but it began to decline in favor of the gas chamber.[5] By 1973, 12 states were using the gas chamber, then lethal injection was introduced in 1977.[6] Electrocution, the gas chamber, and lethal injection have all been viewed as an improvement on the previous methods, but all of them produce ghastly results, especially if performed incorrectly.

The issues with the gas chamber and electrocution are well documented. The gas chamber is supposed to operate relatively quickly, but it is dangerous to everyone in the area and can produce horrifying results when it does not work correctly.[7] The 1992 Arizona gassing of Donald Harding took eleven minutes and was “so grotesque that the attorney general threw up and the warden threatened to quit if he were required to execute someone by gas again.” The electric chair can take many minutes to execute the condemned, skin temperature reaches 200 degrees, the prisoner catches fire, and “burning of the prisoner’s body is an inherent part of an electrocution.”[8] The corpse is often so mutilated by the process that officials have to let it cool before it can be removed from the chair. Prison officials testified in State v. Mata in 2004 that smoke was expected from the body, and it was only concerning enough to address if the prisoner’s head caught on fire.[9]

Lethal injection was introduced in 1977 in response to criticisms of the barbaric execution methods being used at the time. Utah’s state medical examiner, Jay Champan, devised the three-drug protocol in use in most states today. Sodium Pentothal is injected to put the condemned to sleep. Then, Pancuronium Bromide is injected to paralyze the condemned and prevent the audience from witnessing any unsightly twitching, gasping, or moaning. Finally, Potassium Chloride is injected to stop the heart. One court held that “there simply is no reason to believe that the defendant would experience anything more than the insertion of the intravenous catheter followed by unconsciousness.”[10] Justice Scalia wrote that lethal injection “looks pretty desirable… how enviable a quiet death by lethal injection.”[11]

The concept of lethal injection sounds pretty humane. The problem is the reality. The primary concern according to the inventor of modern lethal injection, Jay Chapman, is that “it never occurred to me when we set this up that we’d have complete idiots administering the drugs.” Chapman is not being rude to prison doctors or nurses. The problem is that both the American Medical Association and American Nursing Association forbid their members from participating in executions as a violation of the first part of the Hippocratic Oath to do no harm.[12] Medical personnel cannot assist in placing IVs, mixing drugs, supervising injections, or any part of the execution process except issuing a death certificate afterwards. Alabama prison officials could not even guarantee the presence of a nurse, certainly not the presence or participation of a doctor, when they wanted to perform a “cut-down procedure” to access a vein to place an IV for the lethal injection.[13]

There are three critical points where lethal injections can go horribly wrong. The placement of the IV, the mixing and injection of the drugs, and ensuring that the condemned is properly anesthetized.

Placing an IV is a common, every-day procedure performed by medical personnel from doctors and nurses to blood bank and plasma center employees. The problem is that executions are typically carried out by prison employees, and “execution teams routinely consist of ‘nonmedical people.’” Prison officials routinely either fail to disclose or openly refuse to disclose if any member of the execution team has any medical training.[14]

Placing an IV with minimal training is difficult enough. When the condemned is obese, cold, frightened, or has a history of IV drug use, the results can be gruesome. Not surprisingly, people about to be executed in sterile death chambers tend to be cold and frightened, and many have histories of IV drug use. Angel Diaz took more than 34 minutes to die during a 2006 Florida execution, and the procedure left foot-long chemical burns up both of his arms. An autopsy later revealed that the IV had been pushed completely through his vein, and the chemicals were injected into his muscles rather than his blood stream. This error also meant that Diaz was “almost certainly not anesthetized,” and he visibly grimaced through the first 26 minutes of the execution. Another execution was substantially prolonged by kinks in the IV line and the execution team placing the IV pointing at the fingers rather than the heart.

There are numerous reports of execution teams probing for an hour or longer to find a vein. In some cases the condemned has to assist in getting the needle into a vein. IVs for executions have been placed in the condemneds’ wrists, hands, legs, and feet. Kentucky has a certified phlebotomist and EMT to place the IVs, but the protocol allows for up to an hour to get the IV into a vein.[15] Ohio has had several recent incidents of execution teams probing for as long as two hours to find a vein. Romell Broom was scheduled to be executed in late 2009, but the execution team could not find a suitable vein. The execution team worked on Broom for more than two hours: shunts were forced into his veins, the needle reportedly hit a bone at one point, and Broom tried to assist in getting the needle into a vein himself. At one point, the team did manage to get the needle into a vein, but it collapsed as soon as the execution team attempted to start a saline drip. Broom put his hands over his face and began to sob as a member of the execution team rubbed his back.

Perhaps most disturbingly, from a legal perspective, was that Broom’s request for his attorney was denied. His attorney was told that attorneys cannot have contact with clients once the process has begun. Broom’s attorney sent an email to Ohio Supreme Court Chief Justice Thomas Moyer an hour into the procedure, and mercifully, Ohio’s governor Ted Strickland granted Broom a one week reprieve after more than two hours. The reprieve was extended indefinitely to allow Broom to appeal the Constitutionality of Ohio’s lethal injection procedure.

The US Supreme Court ruled in 1947 that it violates neither double jeopardy nor the 8th amendment to execute someone twice.[16] In that case, two prison officials who were not electricians assembled the electric chair, reportedly while drunk, and Willie Francis was subjected to an agonizing,  though not lethal, electrocution. Francis, who committed his crime when he was sixteen years old, was returned to his cell and eventually executed after his appeals were exhausted a second time.

The second point where executions can go horribly wrong occurs when the drugs to be administered are mixed. Sodium Pentothal comes as a powder and has to be mixed with water shortly before the execution, usually by prison staff who may have little to no chemical or medical training. Astonishingly, the US Supreme Court has held that trained personnel are unnecessary because prison staff can follow the instructions on the package insert that comes from the manufacturer.[17] Mixing pharmaceuticals that will be used to paralyze a person as he or she is executed is apparently no more complicated than making a microwave dinner, according to the US Supreme Court.

Similarly, it is vital that the three drugs be administered in the proper order with the line properly flushed with saline between each drug. If the lines are not properly cleared, they may clog and prolong the execution.[18] A prison warden demonstrated this during Texas’s first execution by lethal injection in 1982. The warden mixed all three drugs in one syringe, producing a “thick, white, sludge.” After the first attempt, a doctor attempted to certify the inmate’s death, but found him still breathing.

The first two problems are caused by inevitable and repeated human error. The final major problem with lethal injection is that we have no idea if we are properly anesthetizing people before they are executed. Anesthetization is vital because the US Supreme Court has held that the pain of suffocation from the Pancuronium Bromide and the heart stopping from the Potassium Chloride is “constitutionally unacceptable” if the condemned is not unconscious.[19]

States typically use Sodium Pentothal to anesthetize the condemned. Sodium Pentothal is an “ultra-short acting barbiturate… meant to render the inmate deeply unconscious within 90 seconds.” The problem is that it is ultra-short acting, so in most clinical settings it is used as an initial anesthetic, then anesthesia is maintained with other drugs. If anesthesia were to wear off, and an inmate were to wake up to the agony of suffocation and having his heart stopped, there would be no way to tell because the second drug paralyzes the condemned. To overcome these concerns, executioners typically inject a much larger dose of Sodium Pentothal than would be used in an ordinary surgery. Theoretically, that should be sufficient, assuming the larger dose is actually injected, and there are no kinks or other issues with the IV lines that prevent the drug from reaching the condemned. Studies of autopsy reports have revealed much lower levels of anesthetic than expected in executed inmates and lend support to these concerns.[20]

“Sloppiness in record keeping” prevents a proper review to ensure that proper doses are actually being given. Similarly, no one on the execution team can see if the drugs are flowing properly through the IV line because they are administering the drugs from a separate room. The IV line passes through a wall between the execution team and the execution chamber, and then it typically goes under a sheet to the inmate’s arm. According to Columbia University anesthesiologist Dr. Mark Heath, it “would be completely, deeply beneath any reasonable standard of care” to administer general anesthesia from a remote location in any other circumstance.

University of Massachusetts professor of anesthesiology, Dr. Mark Dershwitz counters that “you don’t need a lot of fancy initials after your name” to get a functioning IV and gauge consciousness. However, the problem with gauging consciousness is that the condemned is injected with a paralytic shortly after the anesthetic. Even if they regain consciousness during the execution, the condemned cannot react or respond because they are paralyzed. There is no equipment in the room to monitor the effectiveness of the anesthetic and make sure the inmate is actually unconscious, not just paralyzed. Execution chambers typically do not have even a blood pressure cuff to monitor the condemned’s responses or consciousness during the execution.[21] The warden and deputy warden simply perform a “visual inspection” to ensure that the condemned is unconscious.[22]

There is a relatively simple solution to this anesthetic issue: simply don’t administer the Pancuronium Bromide to paralyze the inmate. The Sodium Pentothol anesthetizes the inmate, and the Potassium Chloride stops his or her heart. The sole purpose of the Pancuronium Bromide is “preserving the dignity of the procedure.”[23] The US Supreme Court has held that preventing unsightly convulsions or seizures is a sufficient reason to paralyze the condemned as we execute him or her.[24]

We want to maintain the illusion that lethal injection allows the condemned to simply slip quietly from life. The problem with that concept is that it is delusional. We are killing a person. There is inherently no dignity in that “procedure,” and no reason to take unnecessary risks that may be cruel and inhumane just so we can assuage our guilt by pretending that it is a clean, clinical, and dignified “procedure.”

The gas chamber and the electric chair were both hailed at their inception as an innovation in executions to make the process more humane. Experience showed both to be truly ghastly. Lethal injection has been hailed as the new innovation to make executions a nice, clean “procedure.” After a quarter-century, it is starting to become clear that lethal injection is also routinely a horrifying method of execution that carries grave risks when everything works as planned and simply unacceptable risks when anything does not go as planned.

Modern society has tried to avoid gory methods of execution, such as hanging or the firing squad because they seem outdated. Surely modern technology can do better than this “antiquated, Old–West style of justice.” However, the firing squad and hanging have both relatively recently been held to be Constitutional and carried out. Ronnie Lee Gardner was executed by firing squad in 2010, and Charles Rodman Campbell was hung in Washington in 1994.[25] The executions were gory, perceived as antiquated, and provided no way to pretend we were not killing another person. They also both resulted in a very quick death for the condemned.

Our choice seems to be between two lousy options. We can choose a quick, likely humane but antiquated and gory method of execution that provides no way to assuage our guilt that we’re killing a human being. Or we can choose an easily botched, likely inhumane and cruel method of execution that looks like a clean, modern, clinical procedure, yet masks the true horror of what we are doing under the veneer of technology.