Over the last few years, civil rights lawsuits across the country have uncovered information revealing the maladministration of lethal injection as a method of execution. These lawsuits have highlighted the risks inherent in lethal injection procedures as currently practiced. In September 2007 the U.S. Supreme Court agreed to hear Baze v. Rees, a challenge to Kentucky’s administration of lethal injection. Although the Court rejected the constitutional challenge as specifically applied to Kentucky's procedures, the standard set by the Court will guide lower courts as they determine whether constitutional violations exist in other jurisdictions that perform executions by lethal injection. Following a seven-month de facto moratorium on executions while the Court decided Baze, some states have resumed executions. In other states, executions are still on hold as litigation challenging lethal injection continues.
The Three-Drug Formula
Under the three-drug formula used in virtually all lethal injection jurisdictions, the inmate is first administered sodium thiopental, an anesthetic that is intended to cause unconsciousness. The second drug is pancuronium bromide. It causes paralysis of all muscles, including the diaphragm, which controls breathing. Pancuronium bromide is not a sedative and does not affect the ability to feel pain. If the individual is not unconscious when this drug is administered, he will, over the course of several minutes, experience the physical and psychological agony of suffocation. However, because he is paralyzed, the inmate cannot convey the fact that he is suffocating to death. For this reason, the use of pancuronium is illegal in 42 states for use in animal euthanasia. The third drug is potassium chloride, which is intended to bring about death by causing cardiac arrest. There is no medical dispute that, if an individual is not unconscious, the intravenous injection of this drug causes excruciating pain, likened to setting one’s veins on fire.
Evidence in several jurisdictions has established that lethal injection executions are frequently performed by non-medical personnel who lack the qualifications and training necessary to carry out humane executions that comport with the Eighth Amendment’s prohibition against cruel and unusual punishment. If the first drug, the anesthetic, is not properly mixed and delivered, the risk is substantial that the inmate will experience excruciating pain and suffering.
Need for Qualified Personnel and Transparency
Administration of the three-drug formula is a complicated procedure that requires placing the inmate in a deep anesthetic state to ensure that he does not consciously experience paralysis and asphyxiation or the excruciating pain of cardiac arrest. Personnel responsible for administering lethal injections must perform a series of medical tasks, including inserting IV catheters, mixing and administering drugs, monitoring IV lines, and monitoring the inmate’s level of consciousness. An error at any step could lead to a torturous execution. For this reason, states must use trained, qualified personnel to perform lethal injection executions in order to conform to minimum standards of safe care. Additionally, lethal injection procedures must include measures or checks to ensure that the inmate is sufficiently anesthetized throughout the lethal injection procedure.
While lawsuits across the country have drawn attention to the foreseeable risks of cruel and unusual punishment that departments of correction are ignoring by insisting on using the flawed three-drug formula, there remains much that is not known about lethal injection. This lack of knowledge results in large part from the shroud of secrecy surrounding lethal injection practices. Departments of correction regularly rely on executive privilege to maintain the secrecy of lethal injection procedures. They often do not allow public access to the written protocols they follow in administering lethal injections, nor will they reveal how those protocols were developed. Few records are kept that document lethal injections, and those that do exist are not made available to the public or for scrutiny by medical personnel.
Lethal Injection Challenges and the United States Supreme Court
Two decisions by the United States Supreme Court, Nelson v. Campbell (2004) and Hill v. McDonough (2006), established that challenges to the administration of lethal injection can proceed under the civil rights statute of 1871, known as Section 1983. Nelson and Hill did not address the appropriate standard for lower courts to apply when deciding whether lethal injection procedures violate the Eighth Amendment’s ban on cruel and unusual punishment. In April 2008, in a fractured opinion, the Supreme Court decided Baze v. Rees, an Eighth Amendment challenge to Kentucky’s lethal injection protocol. The three-justice plurality led by Chief Justice John Roberts adopted a standard that requires death row inmates to establish a “substantial risk of serious harm” in order to establish a constitutional violation. The Court also made clear that, if alternative lethal injection procedures are proposed that are “feasible, readily implemented, and in fact substantially reduce” a substantial risk of harm, a state’s refusal to change its method will violate the Constitution.
The Court held that the record in Baze was insufficient to the meet the standard set by the controlling plurality and no evidence of alternative procedures were presented in that case. However, the decision in Baze does not prevent inmates in other states from presenting evidence that establishes constitutional violations in the administration of lethal injection in their states. In cases where there has been more extensive discovery, it is possible that evidence presented will be sufficient to establish an Eighth Amendment violation. As Justice John Paul Stevens wrote in his concurring opinion, “The question of whether a similar three-drug protocol may be used in other states remains open and may well be answered differently in a future case on the basis of a more complete record.” Justice Thomas wrote in a concurring opinion that the “decision is sure to engender more litigation” because “we have left the states without a bright-line rule.”
Lethal Injection Challenges After Baze
Although the Court held that the Kentucky plaintiffs had failed to meet the Eighth Amendment standard set in Baze, in other cases, death row inmates are attempting to present the kind of evidence that the Court in Baze suggested would establish a constitutional violation, namely, that the procedures in place do not adequately ensure that the inmate is sufficiently anesthetized when the second two drugs are delivered. What happens in these cases will depend on several factors, including whether death row inmates were granted full discovery in the case, when they brought the challenges, and whether there is political will to execute inmates in the face of lingering questions about the constitutionally of the administration of a particular state’s three-drug formula under the Baze standard.
Before the Supreme Court decided to hear the Baze case, many states were carrying out executions despite real questions about the safety of their lethal injection protocols. The fact that executions have resumed in some states does not mean that courts have approved of the lethal injection procedures or that problems with untrained personnel and lack of transparency in the process have been resolved. Many inmates’ lethal injection claims have and will be dismissed for procedural reasons, such as filing their claim too late. In other cases, judges have not granted full discovery into the process, thus preventing an inquiry into the actual practice of lethal injection. What we have seen in virtually every state where full discovery has been granted is that the actual administration of lethal injection differs dramatically from the formal written protocols. Only after thorough discovery and an evidentiary hearing will courts be able to determine whether a protocol—and its administration—violates the Eighth Amendment.
Ohio and the Single Drug Protocol
On November 13, 2009, the State of Ohio announced a new lethal injection protocol that uses an intravenous injection of a single anesthetic drug. The new Ohio protocol no longer uses pancuronium bromide, a neuromuscular blocking agent that causes total paralysis of the skeletal muscles, or potassium chloride, a concentrated salt that causes burning pain in the veins and cardiac arrest, to execute inmates. With this new protocol, Ohio has taken a significant step towards eliminating the risk that inmates will suffer excruciating pain during executions.
Updated: April 5, 2011