Baze v. Rees
Q & A
8. How did the states and federal government come to adopt the three-drug protocol?
For a detailed discussion of the history of lethal injection as a method of execution in the United States, see generally Amicus Brief for the Fordham University School of Law, Lewis Stein Center for Law and Ethics [“Fordham Amicus Brief”] ; see also Brief for Petitioners, at 1-7, and sources cited in the brief; Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled The Death Penalty, 76 Fordham L. Rev. 49 (2007); Beardslee v. Woodford, 395 F.3d 1064, 1073-74.
Of the 38 states that have a death penalty statute, lethal injection is the sole method of execution in 28 states, and is one of two methods in nine. Nebraska uses only electrocution. While the federal death penalty statute provides that execution is to be carried out by the method used in the state in which sentence was imposed, lethal injection is the only method that has been used since reinstatement of the federal death penalty. See Fordham Amicus Brief, at 13-14; see also Denno, The Lethal Injection Quandary, 76 Fordham L. Rev. at 96, n. 318.
The Supreme Court has not ruled on whether the electric chair or lethal gas violates the Eighth Amendment to the U.S. Constitution. See Fordham Amicus Brief, at 8-9. State legislatures – save Nebraska – all chose to make lethal injection an option or the sole execution method before cases that challenged those two methods could be decided by the Court. In Bryan v. Moore, 528 U.S. 960 (1999), the Supreme Court granted certiorari to review the constitutionality of the electric chair in Florida, but after the State added the lethal injection option, the Supreme Court dismissed the writ. See Bryan v. Moore, U.S. 1133 (2000). The U.S. Court of Appeals for the Ninth Circuit held that California’s method of execution by lethal gas was “cruel and unusual.” Fierro v. Gomes, 77 F.3d 301, 309 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996). Soon thereafter, the California Legislature adopted lethal injection as the sole method of execution.
In 1977 -- the year after the Supreme Court reinstated the death penalty -- Oklahoma became the first state to adopt lethal injection as a method of execution. See Fordham Amicus Brief, at 16-17; Brief for Petitioners, at 4. However, long before Oklahoma’s adoption of lethal injection, this method of execution was considered and rejected by several entities that studied it, including the State of New York and the government of Great Britain. In the 1950’s, a Royal Commission on Capital Punishment, which had engaged in a five-year study of the death penalty and consulted extensively with the country’s established medical organizations, rejected lethal injection as a method of execution. The Commission’s report reached this conclusion based upon a number of concerns, paramount among them was the acknowledgement that lethal injection requires medical skill in order to be carried out without risk of substantial pain. See Royal Commission on Capital Punishment 1949-1953 Report, at 261; see also Fordham Amicus Brief, at 16.
What was to become Oklahoma’s procedure was dictated to a state senator and state representative by a pathologist who was then Oklahoma’s chief medical examiner, Dr. A. Jay Chapman. Before consulting with Dr. Chapman, the representative had been told by the president of the Oklahoma Medical Association (OMA) that the organization did not want to become involved in developing a protocol because of ethical rules barring physician participation in executions. Dr. Chapman, who was advised of the OMA’s position, and told both legislators that he had no expertise in this area, nonetheless devised a procedure that involved the administration of an ultra-short acting barbiturate and a paralytic chemical. See Fordham Amicus Brief, at 18-19; Brief for Petitioners, at 4-6; Denno, Lethal Injection Quandary, 76 Fordham L. Rev. at 66.
In 1977, after the Oklahoma Legislature enacted a statute making lethal injection the sole method of execution, the state’s department of corrections adopted the protocol proposed by Dr. Chapman. Soon after, Dr. Chapman, who assumed that doctors would inject the chemicals, expressed concern about how the three-drug protocol would be administered, stating that if it was not done properly, “the convict may not die and could be subject to severe muscle pain.” See Brief for Petitioners, at 6; Denno, Lethal Injection Quandary, 76 Fordham L. Rev. at 68 & n.118 and 72 (citing Jim Killackey, Execution Drug Like Anesthesia, Daily Oklahoman, May 12, 1977, at 1.) In 1981, at the suggestion of the medical examiner, the state’s protocol was revised to add potassium chloride – the heart-stopping chemical. See Fordham Amicus Brief, at 23. Dr. Chapman, when recently asked if he was concerned about how the three-drug protocol was being administered, responded, “I never knew we would have complete idiots injecting these drugs. Which we seem to have.” Human Rights Watch, So Long as They Die: Lethal Injections in the United States, at 34 (2006).
In 1982, Texas carried out the first lethal injection execution. Texas had adopted and utilized Oklahoma’s three-drug protocol, despite consultation with a veterinarian who suggested administering only an overdose of pentobarbital, the anesthetic used in animal euthanasia. See Brief for Petitioners, at 6; Robbie Byrd, Informal Talks Opened Door to Lethal Injection.
Other States followed Oklahoma’s lead so that between 1977 and 2002, thirty-seven states moved to lethal injection as the sole method or one of two options. See Fordham Amicus Brief, at 24; Denno, Lethal Injection Quandary, 76 Fordham L. Rev at 78. “Thus Oklahoma’s hurriedly devised legislation and protocol became the basis for lethal injection in nearly every death penalty state in the country without ever being subjected to critical analysis.” Fordham Amicus Brief, at 25. The trial court in Baze found that there is “scant evidence that ensuing State adoption of lethal injection was supported by any additional medical or scientific studies that the adopted form of lethal injection was an acceptable alternative to other methods. Rather, it is this Court’s impression that the various States simply fell in line relying solely on Oklahoma’s protocol.” See Fordham Amicus Brief, at 24 and Brief for Petitioners, at 7, both quoting, Joint Appendix at 755-56.
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