Your lethal injection bill: a fight to the death over an expensive yellow jacket.

• Author: Clermont, Woody R.

ABSTRACT

This article reviews in detail the history of capital punishment, and the United States' constitutional proscription of "cruel and unusual" punishment. Examined are the Magna Carta of 1215, English Bill of Rights of 1689, and various bills of rights of the early American colonies, as they were critical to the Drafters' enlightened understanding of corporal punishment, which eschewed the barbaric and inhumane and culminated in the Eighth Amendment's prohibition of "cruel and unusual" punishment. Included, also, is an examination of the early cases alleging Eighth Amendment violations, for they developed the judiciary's determination of whether certain methods of capital punishment, such as the firing squad and the electric chair, were too "cruel" or "unusual" to pass constitutional muster. This article further exposes the great societal costs engendered by the United States' enlightened approach to capital punishment. Specifically discussed are the enormous expenses beget by the death penalty process, and how these expenses deplete local state economies, distort economic decisions, and render capital punishment anti-productive. This article then particularly examines the litigation concerning lethal injections, and the recent inclusion of pentobarbital into the death-producing cocktail. The ultimate question posed is thus: considering the recent turn of economic events, can the United States continue to maintain the death penalty when life imprisonment without parole may prove to be more cost-efficient?

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Litigation on behalf of death row inmates has exposed problems at every step of the process, including the mixing of the drugs; the setting of the IV lines; the administration of the drugs; and the monitoring of their effectiveness. At each step, discovery has revealed untrained and unreliable personnel working with inadequate equipment under poorly designed conditions. (1) Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmate's consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of "a slightly or marginally safer alternative" is, as the plurality notes, insufficient. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a [s]tate fails to adhere to contemporary standards of decency if it declines to employ those measures. (2) Abstract I. Introduction II. The Macabre History of State-Sanctioned Killing Ancient History Through the 17th Century in the American Colonies l The Punishment of Death During Ancient Times The Death Penalty in the Roman Empire Executions in Britain Capital Punishment in the Colonies Capital Punishment in the States Hanging The Firing Squad Electrocution The Gas Chamber Lethal Injection The Death Penalty and Eighth Amendment Jurisprudence Early Ruminations of Decency Beyond Wilkerson v. Utah: Accidents Do Happen From Furman v. Georgia to the July 2 Cases Death after Life III. "Can you put a price on justice?:" Economics of the Death Penalty The Economics Dollars and Sense The Tax Burden of Justice The Politics IV. Pentobarbital and Death after Baze What does lethal injection cost? Pentobarbital V. Conclusion I. INTRODUCTION

It has been posited that the use of pancuronium bromide (or vecuronium bromide) in the three-drug execution protocol used by many states to execute death row inmates is inhumane because it does not affect consciousness or sensation. (3) The three-drug execution protocol usually consists of the sequential administration of a barbiturate (either sodium thiopental or pentobarbital), followed by the injection of a paralyzing agent (either pancuronium bromide or vecuronium bromide) and a heart-attack-inducing drug (potassium chloride). (4) Yet, the validity of this method is implicated by riveting tales of death-row inmates who awoke during surgical operations. They were trapped in an unmoving state of pain, because they were unable to react, but could nonetheless feel pain during the invasive portion of surgery. This shows the depths of what can only be described as the infliction of psychological torture. (5) There has been further suggestion that prison and corrections officials are drawn to this aspect of the neuromuscular blocking agent, because it makes every execution look peaceful and dignified, regardless of whether that is in fact the case. (6) One commentator has likened the experience to the prospect of the premature burial, as described by the literary genius of Edgar Allen Poe, analogizing the effects of the paralytic drug as resulting in "isolation in his last excruciating moments [which] surely resembles the doomed hopelessness of those who are buried alive." (7) Literally speaking, if this type of end is that gruesome, how is it that we continue a practice we would not in good conscience be able to inflict on a dog, cat, or other domesticated animal? (8)

The pain and torture critics complain only of results when there has been a problem in the actual administration of the barbiturate, the first drug of the three-drug protocol. (9) Since the administration of the first drug necessarily entails the proper insertion of a needle into the inmate's veins to set up the intravenous line ("IV") with saline drip, an error here could have horrible repercussions on the rest of the execution. (10) Issues of finding a suitable vein, inserting the needle into the vein properly, and not having the vein collapse during the procedure continue to plague many executions by lethal injection. (11) Indeed, "[s]ince 1985, at least thirty lethal injections have been prolonged because executioners had difficulty finding suitable veins in which to inject the cocktail of drugs." (12)

While the Eighth Amendment may have been vague in defining what exactly constitutes cruel and unusual punishment, the United States Supreme Court has indicated that the "Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (13) Punishment must not be disproportionate, (14) judgment about punishment as weighed against the Eighth Amendment must be informed by objective factors, and it may not involve the "unnecessary" and "wanton" infliction of pain and suffering. (15) Over time, the Court has essentially articulated six factors that measure the substantive proportionality applied in determining whether a death penalty practice is within the evolving standards of decency: (1) history; (2) judicial precedent; (3) statutes; (4) jury sentencing; (5) penological goals; and (6) international and comparative law. (16)

To this end, great note has been made of the fact that the creator of the lethal injection procedure was a coroner who freely admitted his expertise was dealing with the dead rather than the living. (17) Due to the reluctance of the medical community to become involved in this effort, very little testing could be done; thus, there has not been a sufficient investigation medically or scientifically on the possible pain that could be caused by the administration of lethal injection drugs on humans. (18) While some doctors and nurses have helped in executions, lethal injections in many states are performed "by paramedics, technicians or other prison employees who do not have special training in anesthesia." (19) It comes as no surprise that, in 2005, some researchers called into doubt whether the inmates were sufficiently unconscious during their executions. (20) "The researchers obtained toxicology reports on blood taken after death from 49 executed prisoners in four states, and found that 43 percent had levels of sodium thiopental so low that they might have suffered during execution." (21) A subsequent article from the same medical journal called the research results into doubt altogether, as the authors noted that "[i]t is widely accepted that concentrations of a drug in post-mortem blood might not reflect the concentrations present at the time of death because of postmortem drug redistribution--i.e., site-dependent and time-dependent changes in drug concentration that occur after death." (22)

Thus, many states have resisted any efforts to attack the three-drug protocol on the basis of a failure with the administration of the initial barbiturate as an anesthetic. (23) As one anesthesiologist has opined,

for that argument to be valid in any way, you must ignore the [first] drug in the process--sodium pentothal--that (1) renders the inmate to be completely unconscious, (2) has been used for decades to induce anesthesia in surgical patients and (3) is given in doses far exceeding what is needed to keep the inmate from being aware or feeling anything. (24) Still, it is hard to ignore that most states have implemented a barbiturate overdose amount with the first drug; a typical "[b]arbituate overdose is characterized by the induction of [a barbituate] coma, respiratory arrest, cardiovascular failure, and death." (25) Oregon's Eighth Annual Report on Oregon's Death with Dignity Act observed:

During 1998-2004, secobarbital was the lethal medication prescribed for 101 of the 208 patients (49%). During 2005, as during previous years, all lethal medications prescribed under the provisions of the DWDA were barbiturates. In 2005, 34 patients (89%) used pentobarbital and 4 patients (11%) used secobarbital. Since the DWDA was implemented, 56% of the PAS patients used pentobarbital, 43% used secobarbital, and 2% used other medications. (Three used secobarbital/amobarbital, and one used secobarbital and morphine). (26) Medically, the lethal dose to regularly effective dose ratio can range from 3:1 to 30:1. (27) Thus, in...