On April 16, 2008, the Supreme Court of the United States ruled that the Commonwealth of Kentucky may continue using three drugs when executing criminals by lethal injection. Chief Justice John G. Roberts announced the judgment and offered the opinion that carried the day. Six of the associate justices concurred, sometimes also writing their own opinions. Associate Justice Ruth Bader Ginsberg dissented in a written opinion that Associate Justice David Hackett Souter joined.
The first of the three drugs, which Kentucky applies intravenously, is sodium thiopental. It causes unconsciousness. The second and third, pancuronium bromide and potassium chloride, cause paralysis and then cardiac arrest. The federal government and at least thirty of the thirty-six states that execute criminals with lethal injections use these three drugs in this sequence.
Ralph Baze and Thomas C. Bowling, who were scheduled for execution in Kentucky because each was convicted of murdering two people, had contended in lower courts that the commonwealth “could switch from a three-drug protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate.” Both partiesthe convicts and the commonwealthagreed that a painless death occurs when the executioners use the three drugs properly; however, if they don’t, pain so excruciating that it amounts to the “cruel and unusual punishments” forbidden by the Eighth Amendment to the U.S. Constitution takes place. Neither the constitutionality of capital punishment as such nor of the intensity of this pain was debated. Its likelihood was.
After a trial that lasted seven days, which involved “the testimony of approximately twenty witnesses, including numerous experts,” the federal circuit court for the Commonwealth of Kentucky had found “there to be minimal risk of various claims of improper administration of the protocol.” The Kentucky Supreme Court had agreed, stating that “a method of execution violates the Eighth Amendment only when it ‘creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death.’” The key words were “substantial risk,” an expression with established legal precedence that the lawyers for Baze and Bowling had attempted to replace with “unnecessary risk.” They had been unsuccessful.
The U.S. Supreme Court agreed “to determine whether Kentucky’s lethal injection protocol satisfies the Eighth Amendment.” “We hold that it does,” wrote Chief Justice Roberts. Although it discusses other things, too, his opinion also focused on the distinction between “substantial risk” and “unnecessary risk.” He wrote that “simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.”
Roberts cited a case from the year 1947 in which the Supreme Court had “upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt.” The principal opinion in that trial had stated that “[a]ccidents happen for which no man is to blame” and that such mishaps do “not give rise to an Eight Amendment violation.”
Another opinion in that earlier trial had noted that “’a hypothetical situation’ involving a series of abortive attempts at electrocution would present a different case.” From these previous opinions Chief Justice Roberts inferred that “an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a ‘substantial risk of serious harm’” (emphasis supplied).
It is not as obvious to me as it evidently is to Chief Justice Roberts that there is a material difference between a single misfortune and a line of them when the issue pivots on whether what happens suggests cruelty. With everyone agreeing that what occurs is “regrettable” but not “intolerable,” an entire series of failed attempts at electrocution can be viewed as an “isolated mishap” just as surely as one instance.
Mechanical malfunctions that cause such failures can happen once, twice, and three and more times in a row without necessarily suggesting the infliction of pain for the sake of pain, something that is unconstitutional according to the Supreme Court, because even executioners have bad days. In such cases, the reasoning of the current Supreme Court implies to me, executioners should keep on flipping the electrical switch with no legal jeopardy until they finally get it right. Accidents “happen for which no man is to blame.”
One important difference between using electricity and sodium thiopental is that it might be easier for untrained eyes to see if the first is working. Chief Justice Roberts stated as much, citing a paper in the April 2005 issue of the highly respected British medical journal Lancet. It reported that the blood of most of forty-nine executed prisoners had concentrations of this drug “that would not be expected to produce a surgical plan of anesthesia” and that twenty-one of them “had concentrations consistent with consciousness.” He also noted that in September of that year Lancet published responses by seven other medical researchers that “criticized the methodology supporting the original conclusions.”
In situations where there is this much scientific uncertainty, I think it wise for the courts to err on the side of caution. Chief Justice Roberts sees this differently. “We do not purport to take sides in this dispute,” he wrote. Doing so “would involve the courts in debatable matters far exceeding their expertise.” He is right about this; however, I do not see why the courts cannot note these scientific debates and take them into account without trying to settle them in either direction.
Chief Justice Roberts concludes his opinion with evident pleasure that the United States has “steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection.” Although this is progress, it is not good enough. This nation should join the impressive number of others that have entirely done away with capital punishment. Who needs it in the first place?
David Larson teaches in the School of Religion at Loma Linda University.
This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/559