US Lethal Injection Procedures Face Supreme Court Scrutiny

     On September 25, the US Supreme Court agreed to consider whether the procedure used by the state of Kentucky to administer lethal injection violates the constitutional prohibition against cruel and unusual punishment. This decision is expected to provide important guidance for many other states struggling to fend off similar legal challenges to their lethal injection protocols.

     The Kentucky case before the Supreme Court is similar to other legal challenges brought by death-row inmates in California, Missouri, Oklahoma, and Maryland. At issue in these cases is not whether capital punishment is itself unconstitutional but whether the specific lethal injection procedures employed in these states pose the risk of "unnecessary and wanton infliction of pain" and are, thus, unconstitutional under current standards of interpretation of the Eighth Amendment.

     These court challenges have prompted more than a dozen of the 37 states using lethal injection to suspend executions. Even Texas, which has conducted far more lethal injections than any other state, will stop carrying out executions until the Supreme Court issues its ruling, likely in the summer of 2008.

     Since being introduced 30 years ago in Oklahoma, lethal injection has become the most common method of execution in the United States, primarily because it is perceived as more modern, humane, and less expensive than other methods of capital punishment. Nearly all of the states that have authorized lethal injection use a combination of three drugs for their execution protocols: sodium thiopental (an anesthetic), pancuronium bromide (a neuromuscular blocker that causes paralysis), and potassium chloride (which causes death by stopping the heart).

     The problem with this three-drug protocol is that, unless properly administered, it can result in agonizing pain. Potassium chloride is lethal and quick-acting, but causes an acute burning sensation as it travels through the veins to the heart. Pancuronium bromide causes paralysis but does not affect consciousness or the sensation of pain. If the condemned has not been completely anesthetized before receiving a dose of pancuronium, he will remain conscious while being unable to breathe or communicate. If potassium chloride is administered at that point, he will be subjected to excruciating pain that, because he is paralyzed, will go unnoticed by observers.

     One reason for the increasing number of lawsuits challenging states’ lethal injection procedures is growing evidence that poorly-designed protocols and a lack of training have led to botched executions, including some in which the condemned may have been conscious when the lethal dose of potassium chloride was administered.

     Obviously, one key to avoiding the infliction of unnecessary pain during the lethal injection process is to ensure the proper level of anesthesia. This, however, is not a simple matter. Because professional ethics bar physicians from participating in executions, states must rely on execution "teams" with limited training in crucial areas such as anesthesiology. Competence could be built up if personnel were to conduct repeated executions; however, corrections personnel charged with carrying out executions typically rotate in an effort to reduce the trauma associated with putting prisoners to death.

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