Challenges facing society in the implementation of the death penalty.

• Author: Gaitan, Fernando J., Jr.
• Position: The Lethal Injection Debate: Law and Science

Recent legal challenges to the commonly-used method of lethal injection have raised the question of how much pain is considered too much under the U.S. Constitution. While the Constitution does not mandate a pain-free death, the implementation of the death penalty should comport with the Eighth Amendment's prohibition of cruel and unusual punishment. (1) In my nearly twenty-seven years as a judicial officer, there are few issues I have handled that have caused more anxiety. It would be easy--and, as some have said, appropriate--for those convicted of heinous crimes to receive the same fate as their victims. Those holding that opinion would argue that pain and suffering during execution is not only acceptable, but just.

Neither point of view, however, may represent the prevailing law on this subject. The Eighth Amendment requires, at a minimum, that executions not be cruel and unusual. The meaning of that phrase has evolved over time based upon perceptions of "evolving standards of decency."

I believe most would agree that the Eighth Amendment forbids torture in the implementation of a death sentence--that is, the known infliction of excruciating pain. The result may be that we treat the condemned better than they treated their victims. That notion alone creates great anxiety for many of us because most, if not all, victims of capital crimes were subject to torture.

As judges, the principle of law must be our focus. We cannot be guided by the heinous acts of the condemned in considering the issue of whether lethal injection is constitutionally valid. That is an irony of the law. The law must be fair in its application. If we were to change it for each individual, fairness would then be suspect. This is especially true when considering lethal injection and execution. Some crimes may seem less heinous than others; yet both cause extreme pain and suffering to the victims and their families.

At the execution stage, we are no longer concerned about the actions of the condemned's crimes. That ship has sailed. The condemned was tried by a jury and determined to be guilty. In the penalty phase, the jury heard the aggravating and mitigating factors about the victim, the defendant, and the crime. They determined death to be the appropriate sentence. Thereafter, the task is to implement that sentence within Eighth Amendment constraints.

While the firing squad, hanging, the gas chamber, and the electric chair have been means of execution, I believe our "evolving standards of decency" have brought us to lethal injection. On its face, lethal injection eliminates the appearance of torture. We have learned, and are learning, however, that torture may be alive and well within the "three-drug protocol" if it is not carried out properly.

Thus, the question now arises: what is to be done in light of these concerns? I do not believe that it is necessary to eliminate the method of lethal injection altogether. Rather, I believe lethal injection can survive as a method of execution if important safeguards are implemented.

Many of our citizens and those elected to represent them hold different viewpoints on this issue. Some death penalty proponents believe any concession to constitutional guarantees puts the death penalty opponents closer to a ban on capital punishment. However, according to the latest Gallup Poll completed in October 2007, sixty-nine percent of Americans are in favor of the death penalty for persons convicted of murder. (2) Thus, it is clear that society still views capital punishment as an acceptable form of punishment. It is the "how to," or method of execution which presents the recurring problem.

Our society faces real challenges here. How does society view capital punishment in light of "evolving standards of decency"? If we can accomplish execution without the potential for excruciating pain, are we obligated to do so under the Eighth Amendment? Does simply knowing that there are flaws in the implementation of the three-drug protocol and not taking precautions to address those flaws amount to an intent to inflict torture?

As I considered the issues in Taylor v. Crawford, (3) both before and during the initial handling of this case, I made certain assumptions. Those assumptions did not withstand the rigors of discovery and examination. The assumptions were: first, that the state of Missouri had a written execution protocol; second, that it had been subjected to due diligence before implementation; third, that this protocol was approved by either the legislative and/or executive (Department of Corrections) branches of the Missouri government; and fourth, that trained medical personnel implemented it properly and consistently. None of these assumptions proved to be true. This litigation forced the state of Missouri, and perhaps other states, for the first time to scrutinize their execution protocols and ensure that they fell within the framework of the Eighth Amendment.

It is unclear whether the judiciary is the most appropriate forum to resolve these difficult questions. It was the state legislatures, after all, which adopted the various methods of executions used over the years, including lethal injection. Should the courts serve as a check on the legislature's adoption of these methods? Or rather should society, through elected officials, determine what is humane according to society's evolving standards of decency? Of course, there are no clear answers. Certainly, in our history, the courts have played a pivotal role in helping to shape and determine what constitutes cruel and unusual punishment under the Constitution, but courts should not be the primary source that examines these important issues.

Currently, of the thirty-eight states that have adopted the death penalty, lethal injection is the only method of execution used in twenty-eight states, (4) and is one of two methods of execution used in nine states. (5) No state uses electrocution as its sole method of execution. (6) In addition, no states provide for lethal gas, hanging, or the firing squad as the sole method of execution. (7)

As our standards of decency have developed, the pattern has been that one method of execution has been abandoned in favor of a more humane method. Thus, "a penalty that was permissible at one time in our Nation's history is not necessarily permissible today." (8) This pattern has allowed the death penalty to survive in America even when particular methods of execution have been challenged as inhumane or found unconstitutional.

Part I of this Article discusses the development of lethal injection. Part II analyzes the constitutionality of the three-drug protocol, the method of lethal injection currently being administered in most states. It also discusses the basis for the legal challenges to the protocol and the standards that have been applied by various courts. Part III examines whether the three-drug protocol should continue to be used to execute inmates in light of its challenges and problems, and will consider the alternatives to using this protocol.

1. THE DEVELOPMENT OF LETHAL INJECTION (9)

   While lethal injection as a method of execution has been in effect for less than thirty years, execution by a chemical injection was not a groundbreaking or novel idea when it was first adopted in 1977. (10) The idea of executing an inmate by lethal injection was considered as early as 1888 by a panel commissioned by the State of New York. (11) The panel rejected lethal injection as a method of execution and concluded that electrocution was the preferable method, (12) primarily because the medical profession expressed concerns that the public would begin to associate the practice of medicine with death. (13)

   Now some one hundred twenty years later, the concerns of the medical profession have not changed and are as true today as they were in 1888. The American Medical Association ("AMA") Council on Ethical and Judicial Affairs clearly set out its opposition to physician participation in all executions in Ethical Opinion 2.06. The AMA expressed concerns about the public perception of the medical profession similar to those expressed in 1888. The AMA stated in relevant part:

   The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine--first, do no harm. Therefore, requiring physicians to be involved in executions violates their oath to protect lives and erodes public confidence in the medical profession. (14) In 1953, the British government also considered using lethal injection as a means of execution, and also rejected it. (15) The Report of the Royal Commission on Capital Punishment pointed to three specific reasons why lethal injection was rejected. (16) First, the Commission concluded that certain physical abnormalities of the condemned might make the procedure impossible. (17) An inmate's height, weight, age, and even whether the inmate is a drug user can affect carrying out the lethal injection procedure. (18) Even normal veins can make the procedure difficult as veins can become flattened due to nervousness or cold temperatures, which are typical of an execution room. (19) Second, the Commission thought the inmates would not cooperate by refusing to remain still--and if the subject moves around too much it makes lethal injection very difficult. (20) These concerns are still as relevant today as they were when the commission met. Lastly, the Commission also recognized that medical skills were required to carry out the procedure effectively. (21) However, the medical profession in Britain, just like the medical profession in the United States, was unwilling to participate and bring medicine into the process of execution. (22)

   Twenty-five years after the British Commission's findings, the United States once again took up the issue of lethal injection, following the Supreme Court's decision in Gregg v...