The Lethal Injection Debate: Law and Science

INTRODUCTION On April 16, 2008, for the first time in six decades, the United States Supreme Court reviewed evidence concerning whether a state's method of execution violated the Eighth Amendment's Cruel and Unusual Punishments Clause. (1) In Baze v. Rees, (2) a 7-2 plurality ruling, (3) the Court upheld the constitutionality of Kentucky's method of executing inmates by lethal injection, determining that Kentucky's administration of a three-drug combination used by most death penalty states did not pose a "substantial" or "objectively intolerable" risk of "serious harm" to inmates. (4) The Court also concluded that petitioners' proposed alternative method of execution, consisting of a large dose of only the first of the three drugs, was unacceptable. (5) The road leading to Baze is well traveled with lethal injection litigation; yet, post-Baze, there appear to be many more litigation miles still to go. Ever since Oklahoma first adopted lethal injection in 1977, attorneys have challenged the method's constitutionality on a variety of grounds, ranging from the selection and qualifications of the execution team to the involvement of physicians in the execution process to the formula developed for an injection. (6) The typical formula, which Kentucky uses, consists of a serial sequence of three drugs: sodium thiopental, a common anesthetic for surgery that is intended to cause unconsciousness; pancuronium bromide, a total muscle relaxant that stops breathing by paralyzing the diaphragm and lungs; and potassium chloride, a toxin that induces cardiac arrest and permanently stops the inmate's heartbeat. (7) A primary concern in Baze and lethal injection litigation generally rests with the second drug, pancuronium bromide. Without adequate anesthesia, pancuronium can cause an inmate excruciating pain and suffering because the inmate slowly suffocates from the drug's effects while paralyzed and unable to cry out. Such agony is increased all the more when executioners inject the third drug, potassium chloride, which creates an intense and unbearable burning. There is agreement that if the sodium thiopental is ineffective, it would be unconscionable to inject the second and third drugs into a conscious person. A key issue in litigation is whether prison officials and executioners can determine if an inmate is aware and in torment because the pancuronium is such a powerful mask of emotions. (8) In Baze, the Court found that Kentucky's Department of Corrections took proper precautions to preclude a substantial risk of maladministration of this three-drug combination. (9) Yet there are limits to the Court's analysis that suggest that it is by no means a definitive response to the issue of lethal injection's constitutionality. (10) For example, Baze is so splintered that none of its seven opinions comprises more than three votes; (11) the Justices also cite to a wide range of explanations and qualifications about their reasoning. (12) Likewise, the decision is narrowly confined to just Kentucky and its particular protocol. While the Court asserts that its holding pertains to state protocols that are "substantially similar" to Kentucky's, the Court provides no guidance for the parameters of such a comparison. (13) Such obscurity is compounded further by Kentucky's particular execution history. The state has conducted only one lethal injection execution (14) and offers a limited record on which to base a lethal injection challenge. (15) Other states have far better evidence and execution data. (16) These points are critical given that lethal injection has been adopted for use by all but one of the thirty-six death penalty states and the federal government. (17) While it is beyond the scope of this Introduction to analyze Baze in further detail, one matter seems clear. Voices on both sides of the death penalty debate have emphasized that Baze left doors open for future lethal injection challenges. (18) There is no better background for attempting to enter, or close, those doors than the Fordham Urban Law Journal's symposium issue, The Lethal Injection Debate: Law and Science. …