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Elizabeth L. Silver Headshot

The Three-Drug Cocktail as Cruel and Unusual Punishment

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This week placed America on the forefront of human rights violations before the entire globe. Amidst stonings in Pakistan and genocide in Syria, Europe and much of this country took notice of our own backyard when Oklahoma brutally executed a man using a new drug that resulted in 43 minutes of visible anguish. Clayton Lockett, the inmate, died via heart attack instead of a purportedly painless death through the three-drug cocktail, the commonly accepted means of state-sponsored execution. Singled out as a "horror" in the New York Times, "inhumane" by the White House, and a "science experiment" by the ACLU, the death of Clayton Lockett was anything but its intended goal of a quick and painless execution. Instead, his death has been relegated to torture, which to some is seen as "cruel and unusual punishment" so clearly prohibited by the 8th Amendment of the United States Constitution.

What is not cruel and unusual punishment, however, was the mere execution itself. It is not the actual practice of execution, but rather the method by which someone is executed that suddenly has the world aflutter. Although seemingly mutually exclusive, these two concepts are anything but.

The three-drug cocktail has long been a questionable form of execution under the constitution, despite its lawful standing. For a majority of states it consists of sodium thiopental, designed first to anesthetize; pancuronium bromide, second to paralyze; and potassium chloride, third to exterminate. I learned about this practice while a law student at the University of Texas School of Law and subsequently worked on several active death penalty cases -- initially as a student lawyer on a clemency petition and next as a judicial clerk for the Texas Court of Criminal Appeals, thus observing the practice from divergent angles. Those experiences directly inspired me to write my first novel, The Execution of Noa P. Singleton, in which both sides of the death penalty debate are explored through the eyes of an inmate and the mother of her victim hoping to file papers to commute her sentence. I focused heavily on the three-drug cocktail in the book, devoting an entire chapter to its enigmatic, inconsistent, and controvertible application because it is precisely that. A practice that is impossible to prove in its current state, and as a result should be inadmissible under the law. We cannot prove that the process is painless because the second drug should paralyze the inmate, but too many examples of faulty executions have been seen recently, poking holes in the otherwise faceless and accepted practice.

Separating death so mathematically, dividing it into separate hands for each component of the practice, eliminates so much of the responsibility that it almost feels guiltless. The problem is that it doesn't work, regardless of whether it is truncated to a two-drug cocktail as recently used in Ohio, or substituted with new drugs as was the case with Clayton Lockett. Because instead of individuals taking responsibility for administering the drugs, governments are responsible for executing the executions, and other countries are starting to say no. It can't work as intended.

Many European nations who are responsible for one third of the cocktail have in fact stopped permitting the sale of their drugs for use in capital punishment, leaving many states in a quandary. Try new cocktails or come up with a new form of execution. Yet the option of stopping executions altogether in lieu of human experimentation with new drugs never seemed to be a third option.

With the death penalty on the books in 32 states (plus the federal government and military), and its arbitrary application from state to state, we simply cannot risk the possibility of ending human life with such a thin grasp of what passes as humane and what is possibly inhumane, what may work seamlessly and what may fail, what may take minutes to ease into death and what may end in a massive heart attack after forty-three minutes. Far too many loopholes reside in a system that could involve torture.

Which is why it is the right move for Oklahoma to begin an investigation of the practice. Which is why the second execution of the day for Charles Warner was stayed. Which is why we may start to see the three-drug cocktail's well-established practice begin to erode, and rightly so.

Charles Warner, the second act of April 29th now has a Second Act, but what will it mean? Will Oklahoma place him on the gurney in a matter of weeks once all this white noise subsides? Will the world continue to take notice? Will Americans continue to vote to uphold the death penalty despite its waning support and application? Will this wait serve as torture akin to the forty-three minutes Clayton Lockett "writhed" on the gurney in pain?

There is a doctrine in tort law called res ipsa loquitur, which in Latin literally means, "the thing itself speaks," or more commonly used, "the thing speaks for itself." The typical example given to explain this concept is that of a sponge left inside a patient following surgery: using one's common sense and logic, it is clear that it could only have gotten there by the surgeon's hand.

Analogizing tort law, it seems incomprehensible to see a practice as "cruel and unusual" as the three-drug cocktail and still deny it that constitutional status. Medicine's Hippocratic Oath and the American Board of Anesthesiology are inconsistent with physician-administered executions. According to the Supreme Court, what is determined to be "cruel and unusual" is reflected in "evolving standards of decency that mark the progress of a maturing society." The evolution of the three-drug cocktail should qualify as precisely that and experimenting with new drugs in executions that cannot be proven as painless is as culpable as a sponge left in a body. Res Ipsa Loquitur. The thing speaks for itself.