ACSBlog: The Blog of the American Constitution Society

by Megan McCracken, Eighth Amendment Resource Counsel and consultant to the Death Penalty Clinic at the U.C. Berkeley School of Law

Yesterday, in a splintered opinion in the Baze v. Rees case, a three-justice plurality of the Supreme Court established an Eighth Amendment standard for lower courts to apply in cases challenging lethal injection procedures. The Court’s decision did nothing, however, to resolve the fundamental problems with lethal injection as it is practiced in 36 states.

Under the standard announced by Chief Justice Roberts, who was joined by Justices Kennedy and Alito, plaintiffs challenging the administration of lethal injection must show that the protocol that will be followed in their executions poses a demonstrated risk of causing severe pain. The risk must be substantial in comparison to known and available alternative methods of carrying out the executions.

Everything you ever wanted to know about lethal injection is here, but the bottom line is simple: the commonly-used three-drug formula is flawed and will cause excruciating pain and a torturous death if it is not administered properly. The risk of improper administration is very real. It has happened in the past, and it will happen again if lethal injection procedures are not changed.

The first drug in the protocol is supposed to anesthetize, the second one paralyzes, and the third one kills. Administering the first drug properly to render the condemned inmate adequately anesthetized is a complicated procedure that requires specialized skill and knowledge. Yet, in many states, this complicated process has been delegated to prison guards and volunteer executioners who are poorly trained and profoundly unqualified for the task.

Examples from cases across the country bear out the risk of the three-drug formula. In Maryland, for example, an execution team leader had never seen a copy of the execution operations manual. Until this year, Tennessee’s lethal injection protocol was so poorly drafted that it contained instructions for electrocution, including notations to shave the inmate’s head and ensure that a fire extinguisher was nearby.  

During the 2006 execution of Joseph Lewis Clark in Ohio, technicians struggled to place the IVs in Mr. Clark’s arms, sticking him 19 times with large-gauge IV needles. Several minutes into the execution, Mr. Clark’s vein collapsed and his arm began to swell, indicating that the drugs were being pushed into the flesh of his arm, rather than his blood stream. Mr. Clark raised his head off the gurney and repeatedly stated, “It don’t work.”

Execution personnel closed the curtains separating the witnesses from the execution chamber and worked an additional 30 minutes to replace the IVs. In the end, Clark’s execution took 90 minutes. The autopsy revealed that the drugs had been injected outside of Clark’s veins and cited “inadequate skills of the technical personnel involved” as the reason for the error. The murder victim’s brother, who was a witness to the execution, said, “Nobody should have to die a horrible death.”

Clark’s case is not unique. In California, records indicate that in 6 of 11 recent executions, the condemned inmate may have been conscious when prison guards administered the third drug, which burns like fire through the veins before causing cardiac arrest. The torturous pain these men likely suffered was invisible to witnesses, however, because they were paralyzed by the second drug and therefore unable to scream or move or otherwise communicate their pain.

It is hard to take witness accounts of “peaceful” or “dignified” executions seriously when you find out that the inmates have been paralyzed, rendered incapable of moving a muscle.

The lethal injection procedures government officials use on inmates have been rejected by veterinarians for animal euthanasia. Animals are euthanized using a barbiturate overdose, a procedure that is neither painful nor risky. Several federal courts have suggested that states consider a barbiturate-only method of execution, and in Tennessee, a protocol committee that was commissioned by the governor to study the most reliable and humane way to perform lethal injection recommended a one-drug, barbiturate-only protocol. Even so, states have stubbornly refused to reform their lethal injection procedures.

It seems like states have resisted making a change because they don’t want to give up the paralytic drug, which has allowed government officials to give the impression that executions are peaceful and humane. But we now know this is hardly the case.

Some Americans support the death penalty, some oppose it. As long as some States have the death penalty, the Constitution will limit the manner in which it can be imposed. And while some people may believe inmates deserve to be executed cruelly, the Constitution doesn't allow the States to indulge that impulse. Under the Eighth Amendment, nobody should have to die a horrible death.