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Of the 36 death penalty states, 35 now rely on lethal injection as their preferred method of execution. They adopted lethal injection at least in part because it was supposed to be more humane than other forms of the death penalty — less painful than the electric chair or the gas chamber. And yet today the Supreme Court hears oral argument in Baze v. Rees, a case challenging Kentucky’s lethal-injection protocol as too cruel to pass constitutional scrutiny. Kentucky’s protocol is similar to that employed by other death penalty states: a combination of a short-acting anesthetic, a muscle paralyzer, and a heart-stopping drug. The Baze plaintiffs, two death row inmates, argue that this method violates the Eighth Amendment because an uncritically chosen combination of drugs (a generous description of how the individual drugs were chosen in most states), particularly when administered by untrained personnel (as is standard practice in death houses nationwide), produces a foreseeable and avoidable danger of tortuous pain. In particular, the paralyzing drug serves to mask all visible suffering by freezing the inmate’s muscles. Thus, improperly anesthetized inmates may appear peaceful to witnesses, but suffer excruciating pain or conscious suffocation before death. How can this three-drug protocol be so obviously unsound when all but one death penalty state has adopted it over the last 30 years? History provides the answer. WHAT STUDY? As early as 1888, the state of New York considered using a lethal injection of cyanide as a form of execution. But a state commission rejected it, in part based on objections from medical professionals. (Instead, New York built the first electric chair.) In 1953, Great Britain’s Royal Commission on Capital Punishment also dismissed the idea of lethal injection after a five-year study concluded that the proposed injection methods were not necessarily more humane or less risky than hanging, the country’s long-standing method. The commission gave substantial weight to medical expertise. The concerns raised by those experts still ring true today — most prominently, concerns about the proper choice of drugs and the need for skilled personnel to perform the execution. Nonetheless, when the U.S. Supreme Court’s de facto four-year moratorium on executions came to an end in 1976, American states began turning to lethal injection. In 1977, Oklahoma became the first state to adopt lethal injection, based on a protocol conjured up by A. Jay Chapman, then the state’s medical examiner. At the time, Chapman forthrightly conceded his profound lack of expertise. When initially approached by lawmakers, he responded that he was “an expert in dead bodies but not an expert in getting them that way.” Yet, without seeking input from any actual experts, Chapman quickly devised what has come to be the standard lethal-injection protocol — the same three-drug combination that the Supreme Court is reviewing. Soon after Oklahoma adopted his method, Chapman warned in The Daily Oklahoman that “if the death-dealing drug is not administered properly, the convict may not die and could be subjected to severe muscle pain.” Such uncertainty did not, however, prevent the method’s widespread adoption. State after state followed Oklahoma’s lead. They, too, did not ponder the medical opinions previously gathered or pause to gather any new medical or scientific evidence. Seemingly oblivious to the potential risks, lawmakers did little more than assert that lethal injection appeared more humane and visually palatable than other, viscerally brutal methods. It was also cheaper. Incredibly, many states did get implementation advice from Fred Leuchter, whose only “credential” was that he ran the country’s sole commercial provider of execution equipment in the late 1970s and 1980s. (Leuchter fell out of favor after he claimed that gas chambers were never used in Nazi death camps and was subsequently exposed as having lied about being an engineer.) In short, a nationwide game of “follow the leader,” driven by a healthy dose of incompetence, led to the widespread adoption of the three-drug protocol. HORRIBLY BOTCHED That method’s dangers have proved inescapable, as the past two years vividly demonstrate. Problems that have emerged include California’s use of grossly ill-trained executioners (including one who smuggled illegal drugs into prison) and Missouri’s dependence on a doctor who supervised 54 executions despite more than 20 malpractice suits in his regular practice and evidence that he wrongly mixed drug amounts due to dyslexia. In Kentucky, the protocol has allowed a poorly trained executioner to insert catheters right into an inmate’s neck. Most horrifying of all has been the evidence of horribly botched executions. In May 2007, an Ohio prisoner may have suffocated during a nearly two-hour-long execution, which came just a year after a controversial 90-minute-long execution drove Ohio to examine its procedures. In December 2006, a 34-minute execution tormented a Florida prisoner who may have been conscious. Just as alarming as these examples is the realization that many other serious errors have surely gone unreported by the media. The history of lethal injection is a long tale of repression of public debate about the true inhumanity of this method of execution. From the beginning, the concept of the three-drug protocol, specifically the paralytic agent as the second step, has impeded public understanding. The paralytic agent neither kills the prisoner nor reduces his pain. But it does hide the painful realities of execution, because a paralyzed inmate is physically unable to express any suffering. Execution observers, including the media witnesses who act as the public’s eyes, see only a sanitized version of what is really going on. The public has thus been led to believe — wrongly — that inmates are always executed in a relatively humane manner. Similarly, by copying Oklahoma’s intentionally vague protocol for administering lethal injection, other states have also followed Oklahoma in delegating critical details about implementation to their departments of corrections. Corrections officers have been left to figure out what specific drugs to use, what amounts to inject, and how to inject the drugs. Lacking any appropriate medical expertise, they have copied the poor practices of other states and looked to “consultants” such as Chapman and Leuchter for guidance. Typically, the specific procedures adopted have been treated as exempt from notice-and-comment requirements under state administrative law. As a result, those critical decisions have remained hidden from public scrutiny. More generally, states have closely guarded most information about lethal injection. States resist public disclosure of their execution procedures, the qualifications and training of their executioners, and the evidence from post-execution autopsies. Even when courts occasionally force states to provide prisoners with information regarding lethal-injection protocols, many courts agree to keep this information under seal and impose extremely restrictive protective orders on inmates’ counsel. TIME TO LOOK CLOSELY In the past, it was public revulsion against other forms of execution that led to changes. For example, in the early to mid-20th century, states sought to implement a more humane execution method after the people learned how brutal a death by electrocution could be and how high the risk of error leading to agonizing pain was. A similar turn against hanging had earlier led to the development of the electric chair and the gas chamber. In contrast, the systematic repression of information about lethal injection has undermined a comparable process of democratic deliberation and reform. A needlessly risky and unnecessarily cruel method has become entrenched, despite readily available alternatives. Animals, for example, are typically euthanized with a single massive overdose of barbiturates, because this method prevents serious pain even if errors in implementation occur. And yet, despite the efforts of state officials to keep the truth about lethal injection under wraps, the Baze case shows that the facts are coming out. People are publicly questioning the humanity of lethal injection as practiced. Even Chapman, the one-time Oklahoma medical examiner, has publicly expressed concerns. In 2006, he observed to Human Rights Watch that he “never knew we would have complete idiots injecting these drugs.” He now agrees that states should be compelled to employ properly qualified personnel and that the wrong drugs are being used. Given the sad history of lethal injection, judicial deference to the procedural and administrative decisions of state corrections officials is unwarranted. Instead, courts must carefully review execution methods to ensure that they do not cause severe and unnecessary pain. In deciding Baze, the Supreme Court should require states to make reasoned choices about lethal-injection drugs and protocols informed by relevant expertise and to use trained and qualified personnel to administer the drugs. This is no more than what states ethically should have done all along and what states constitutionally must do now.
Alison J. Nathan is a visiting assistant professor at Fordham University School of Law and a former law clerk to Supreme Court Justice John Paul Stevens. Nathan is counsel of record for an amicus brief in support of the petitioners in Baze v. Rees , filed on behalf of Fordham’s Louis Stein Center for Law and Ethics.

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