Researchers point out the 30-year-old three-drug sequence used today was adopted by states with minimal input from medical or other scientific experts. There are no uniform guidelines for dosages or other procedures, with most details being left up to individual state correctional authorities. Before the current litigation brought these procedures out in the open, many states even treated their guidelines with great secrecy, citing “security” concerns.

     In a December 2006 ruling on a challenge to California’s lethal injection protocol, US District Judge Jeremy Fogel affirmed that the state’s implementation of the procedure was “broken, but it can be fixed.” He gave the state two options for revising its protocol: either provide qualified medical personnel to ensure the condemned is unconscious during the procedure or administer a single massive dose of a quick-acting barbiturate.

     California’s response was to announce it had found two anesthesiologists willing to take part in the pending execution of convicted murderer and rapist Michael Morales. But these physicians abruptly withdrew hours before the scheduled execution time when it became clear that a separate court interpretation would require them to intervene personally in the execution procedure if Morales appeared conscious or in pain during the process.

     So why not choose to administer a single dose of barbiturate, such as thiopental or pentobarbital, as has been done in euthanasia? One major reason appears to be concern that the resulting death will take too long—perhaps 30 minutes, rather than three or four—and that witnesses might be uncomfortable seeing involuntary movements of the condemned’s body as the heart stops. Indeed, the primary reason for using a paralytic agent such as pancuronium seems to be to address any discomfort with the death process on the part of executioners and witnesses.

     But the Supreme Court is being asked to consider the civil rights of the condemned, not the sensitivities of the public. If the court rules Kentucky’s lethal injection procedure is unconstitutional, most observers expect little immediate impact on the future of capital punishment in the United States. Whether to retain the death penalty is essentially a legislative issue, and support for capital punishment remains strong in many parts of the country.

     Under international law, countries that retain the use of the death penalty are obligated to minimize the risk of physical and mental suffering associated with its methods of execution. US law’s prohibition of “the unnecessary and wanton infliction of pain” proceeds from a different, but complementary, principle that seeks to interpret the constitutional ban on cruel and unusual punishment through the lens of contemporary standards of decency.

     Earlier methods of capital punishment—hanging, electrocution, lethal gas—have fallen into disuse in the United States largely because they have been deemed not to conform with these standards of decency, especially when contrasted to the quick, painless death promised by lethal injection. Still, as it becomes more widely known that lethal injection as now practiced is often neither quick nor painless, with no simple alternative in sight, Americans may once again be forced to consider whether capital punishment itself is in conformity with their standards as a society.

Further reading:

US Death Penalty Sentences and Use Decline Amid Questions (PDF) from Dialogue Issue 26 (Winter 2007)

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