Lethal Injection: a Constitutional Cocktail? - Jessica Morgan

• Publication year: 2009

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Lethal Injection: A Constitutional Cocktail?

I. Introduction

The case of Baze v. Rees¹ presented the United States Supreme Court with the important question of whether a protocol for execution by lethal injection that imposed a risk of pain when a chemical is misadministered constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution.² The Court, in a 7-2 ruling, notably held that such a method does not violate the Eighth Amendment's prohibition of cruel and unusual punishment provided there is not a substantial risk of serious harm and there are no readily available alternatives that significantly reduce any risk.³ The Court ultimately concluded that Kentucky's lethal injection protocol, involving the separate administrations of the chemicals sodium thiopental, pancuro-nium bromide, and potassium chloride,⁴ did not impose a substantial risk and therefore did not constitute cruel and unusual punishment under the Eighth Amendment.⁵

II. Factual Background

Petitioners Ralph Baze and Thomas Bowling appealed sentences of death following their separate convictions of two counts of capital murder. Ralph Baze was convicted in Kentucky and sentenced to death as a result of his murder of Sheriff Steve Bennett and Deputy Sheriff Arthur Briscoe. Baze appealed to the Supreme Court of Kentucky on several issues; however, the court found no error and affirmed the conviction and the sentence of death.⁶

Thomas Bowling was also convicted of double homicide and sentenced to death.⁷ Bowling asserted on appeal to the Supreme Court of Kentucky that mitigating factors should have been considered during the penalty phase. In light of these mitigating factors, Bowling contended that the death penalty sentence was excessive and violated the Eighth Amendment's⁸ ban against cruel and unusual punishment. The Supreme Court of Kentucky disagreed and affirmed the conviction and the sentence.⁹

After losing on appeal to the Kentucky Supreme Court, both Baze and Bowling filed a joint suit against John Rees (commissioner of the Kentucky Department of Corrections), Glenn Haeberlin (warden of the Kentucky State Penitentiary), and Ernie Fletcher (Governor of Kentucky) in the Franklin Circuit Court for the Commonwealth of Kentucky. Baze and Bowling claimed that the State's three-drug lethal injection protocol violated the Eighth Amendment's prohibition of cruel and unusual punishment because of the risk that the sodium thiopental could be misadministered, which would result in pain upon administration of the second two drugs. During a seven-day bench trial, the court received testimony from approximately twenty witnesses, including experts, regarding Kentucky's three-drug lethal injection protocol.¹⁰ At the conclusion of this testimony, the trial court found there was "minimal risk of various claims of improper administration of the protocol."¹¹ The Kentucky Supreme Court affirmed, stating that the three-drug protocol does not "'create [] a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death.'"¹²

The United States Supreme Court granted certiorari to determine whether Kentucky's three-drug protocol for administration of lethal injection violated the Eighth Amendment's prohibition on cruel and unusual punishment.¹³ In a 7-2 decision, the Supreme Court held that Kentucky's lethal injection method does not violate the Eighth Amendment because it does not create a substantial risk of serious harm and there are no alternative methods readily available.¹⁴

III. Legal Background

A. History of the Eighth Amendment's Prohibition on Cruel and Unusual Punishment

The Eighth Amendment to the United States Constitution¹⁵ provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."¹⁶ These words first appeared in American jurisprudence in 1776 when George Mason incorporated them into section nine of his Declaration of Rights for the State of Virginia.¹⁷ However, similar language and the principles they embody existed long before George Mason's Declaration of Rights for the State of Virginia.¹⁸ The language "cruel and unusual" was first used in 1689 in the English Bill of Rights.¹⁹ Upon accession of William and Mary to the throne of England, Parliament drafted statements containing "such things as are absolutely necessary to be considered for the better securing of our religion, laws and liberties."²⁰ The English Bill of Rights prohibits excessive bail, excessive fines, and the infliction of cruel and unusual punishment.²¹

The drafters of the United States Constitution included the prohibition of "cruel and unusual punishment" to prevent torturous or barbarous punishment.²² Blackstone's Commentaries on the Law of England was extensively used by the American colonists as a reference for criminal punishment.²³ Blackstone's description of punishments for atrocious crimes in which "'circumstances of terror, pain or disgrace are superadded'" including "'being drawn or dragged to the place of execution;. . . embowelling alive, beheading and quartering; . . . public dissection . . . in case of any treason committed by a female, . . . be[ing] burned alive . . . mutilation or dismembering, by cutting off the hand or ears.'"²⁴ These descriptions of barbaric and grotesque punishment concerned American representatives to the various state conventions, who were called to ratify the United States Constitution. For example, Patrick Henry, a Virginia delegate, objected to the lack of a prohibition in the Federal Constitution.²⁵ In addition, another representative to the Massachusetts convention was concerned that Congress was "'nowhere restrained from inventing the most cruel and unheard-of punishments and annexing them to crimes . . . but that Racks And Gibbets may be amongst the most mild instruments of their discipline.'"²⁶ To address these concerns, the Eighth Amendment to the United States Constitu- tion, adopted in 1791, included language proscribing cruel and unusual punishment.²⁷

B. Kentucky's Death Penalty Statute and Execution Protocol

Kentucky Revised Statutes Annotated Sec. 431.220²⁸ mandates that for all death sentences given after March 31, 1998, execution will proceed "by continuous intravenous injection of a substance or combination of substances sufficient to cause death" and will "continue until the prisoner is dead."²⁹ Further, "[n]o physician shall be involved in the conduct of an execution except to certify cause of death."³⁰

The Kentucky Department of Corrections developed the protocol for execution via lethal injection.³¹ The substances used for the intravenous (IV) injections consist of (1) three grams of sodium thiopental, (2) fifty milligrams of pancuronium bromide, and (3) two hundred forty milliequivalents of potassium chloride.³² Personnel having at least one year of professional experience are in charge of inserting the catheters in primary and secondary sites located in the arm, hand, leg, or foot of the prisoner, and the catheter must be inserted within one hour after bringing the prisoner to the execution chamber.³³ Currently, Kentucky employs a phlebotomist and an emergency medical technician to insert the catheter.³⁴

According to Kentucky's protocol, the first injection administered is sodium thiopental, which induces unconsciousness.³⁵ If the prisoner does not appear to be unconscious within sixty seconds after the sodium thiopental is administered, an additional dose of sodium thiopental is injected through the secondary IV site.³⁶ Prior to injecting the second drug, pancuronium bromide, the IV lines are flushed with saline to prevent the sodium thiopental and pancuronium bromide from reacting and causing precipitates that might clog the IV lines.³⁷ Next, the pancuronium bromide is administered, causing paralysis and cessation of respiration.³⁸ Finally, the potassium chloride is administered, which induces cardiac arrest in the prisoner.³⁹ Death is confirmed using an electrocardiogram (EKG), and a physician certifies the cause of death.⁴⁰ The execution team conducts at least ten practice sessions each year, and each practice session requires a complete walk-through of the protocol.⁴¹

Kentucky, along with twenty nine other states, based its lethal injection protocol on methods developed in Oklahoma in 1977.⁴² Oklahoma was the first state to propose lethal injection as the primary method of execution, and Kentucky did not conduct an independent review of the protocol prior to adoption.⁴³ To date, lethal injection is the most prevalent method of execution in the United States.⁴⁴

C. The Court's Prior Evaluations of Death Penalty and Method of Execution in Relation to the Eighth Amendment

The Supreme Court of the United States has reviewed the constitutionality of execution methods on three prior occasions.⁴⁵ In each case, the Court held that the method of execution did not constitute cruel and unusual punishment as intended by the Eighth Amendment.⁴⁶ First, in Wilkerson v. Utah,⁴⁷ the defendant was convicted of premeditated murder and sentenced to death by firing squad in accordance with the laws of the Territory of Utah.⁴⁸ The defendant petitioned the United States Supreme Court, claiming that the state court exceeded its authority by prescribing the method of execution.⁴⁹ The Court affirmed the sentence, stating that "the Territory may define offences and prescribe the punishment of the offenders, subject to the prohibition of the Constitution that cruel and unusual punishments shall not be inflicted."⁵⁰ The Court relied on Blackstone's description of execution for atrocious crimes in which additional terror, pain, or disgrace was super added to determine that death by firing squad did not fall within the category of execution methods intended to be proscribed by the

Eighth Amendment.⁵¹ While noting that "the extent of the constitutional provision which provides that cruel and...