The lethal injection debate: law and science.

• Author: Denno, Deborah W.
• Position: SYMPOSIUM

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. This forum, the first of its kind on this topic, reflects the latest balanced perspective on the legal, medical, and ethical concerns over lethal injection from some of the country's leading experts. While the Court's September 2007 grant of certiorari in Baze (19) led to a de facto national moratorium on executions, (20) as of this writing, states have started to set execution dates and to execute. (21) Lethal injection litigation has continued, picking up where the Baze Court last left off.

Some of the unsettled disputes in Baze pertain to how the Court's Eighth Amendment standards will apply in practice. This symposium's ten articles provide the proper insight and context for making that determination. The first two articles by federal judges Jeremy Fogel and Fernando Gaitan establish a foundation for addressing many of the major deficiencies that prompted the Court to grant Baze certiorari. Fogel's article, In the Eye of the Storm: A Judge's Experience in Lethal-Injection Litigation, analyzes those California cases decided between 2004-2006 that challenged the constitutionality of the state's lethal injection protocol. (22) The discussion focuses particularly on Morales v. Tilton, (23) over which Fogel presided. While Fogel cannot comment on the merits of Morales because it is still pending before him, he considers Morales "unique" and the most demanding "intellectually, emotionally, and spiritually" of all the "many thousands of disputes" he has handled. (24) The facts and procedural backdrop of Morales help to explain why.

Based on a variety of reasons--ranging from the findings of a 2005 article in Lancet (25) reporting insufficient levels of sodium thiopental in lethally injected inmates to growing evidence of California's own particular protocol problems--Fogel rendered a ruling in Morales that was unlike any other before it. For California to conduct the lethal injection execution of Michael Morales, the state had to choose one of two court-mandated options: provide qualified medical personnel who would ensure Morales was unconscious during the procedure, or alter the department of corrections' protocol so that only sodium thiopental would be given, rather than the standard sequence of three different drugs. Strikingly, the state chose to have medical experts present at Morales's execution--a decision that garnered controversy at the time but even more so later when the two anesthesiologists who were selected resigned mere hours before Morales's scheduled execution time. Because of their ethical responsibilities, the anesthesiologists would not accept the interpretation of the U.S. Court of Appeals for the Ninth Circuit that they would have to intervene personally and provide medication or medical assistance if the inmate appeared conscious or in great pain. (26) This predicament prompted Fogel to organize an unusually long and thorough evidentiary hearing--one that would result in a December 15, 2006 memorandum order stating that "unless California made substantial revisions to its protocol, [he] would declare it unconstitutional." (27) On May 15, 2007, California filed a detailed response, which is currently the subject of pending litigation before Fogel. (28)

In this context, Fogel's experiences with Morales are captivating pronouncements "on the workings of our legal system, a meditation on being a judge, and a reflection upon the potency of the death penalty as an issue in our society." (29) He highlights five particularly important experiences, all of which accentuate the extent to which new information about lethal injection over the years has either been the inspiration to acquire further knowledge on the subject or served as a source of varied perceptions and miscommunications among different actors in the criminal justice system. First, Fogel describes the evolution of his views on lethal injection, beginning with his skepticism about lethal injection's risks and ending with his decision to enjoin Morales's execution when he became more educated on lethal injection's hazards. Second, Fogel emphasizes the general divide and varying perceptions toward legal issues among judges, lawyers, and corrections personnel. In his view, "the legal system and the corrections bureaucracy are different cultures in which the same words and events often have different implications and consequences." (30) For Fogel, this revelation prompts a firm take-home message for judges: "While our obligation to be meticulous in our legal analysis and legally coherent in our orders and decisions remains the same, we also have to consider the dynamics of the institution in which our orders and decisions will be implemented." (31)

Fogel's third experience pertains to how the media's coverage of lethal injection challenges has changed over time. At least initially, many news articles broadly, and inaccurately, pitched the topic as "whether lethal injection in the abstract is cruel and unusual punishment" or "whether it is constitutional for a condemned inmate to suffer any pain at all"; only a few articles addressed the actual (and far more narrow) issue in Morales, which was whether California's protocol operated as was intended when it was implemented. (32) After Morales's execution was postponed, however, the news media became substantially more analytical and correct. Fogel's fourth experience also reflects this broad versus narrow divergence. For example, during the public debate about California's lethal injection cases, particularly Morales, the focus was on the viability of the death penalty itself rather than the specific concerns pertaining to lethal injection. Because a lethal injection challenge can possibly postpone an inmate's execution, it prompts deeper reflections about the meaning and purpose of punishment more generally. Judges must...