Even people who support capital punishment are uncomfortable thinking too much about the actual mechanics of putting someone to death. Lethal injection seemed to be the perfect solution. Compared to electrocution, gas or hanging, execution by lethal injection looks as humane as putting a horse to sleep, as Ronald Reagan once suggested.
But appearances are deceiving. Mounting evidence suggests some prisoners may have suffered horribly and needlessly before they died because executioners use a bizarre three-drug protocol hastily concocted 30 years ago and never revised. The Supreme Court has agreed to consider whether executions with these drugs pose an unnecessary and unconstitutionally cruel risk of pain and suffering. This case was brought against Kentucky, but the result will affect all 38 states that use lethal injections, so all have imposed moratoria on executions until the court rules on the legality of this method.
The idea of a "humane execution" is a contradiction in terms; all executions are inherently cruel. But if states are going to have the death penalty, it is not enough to believe that death by poisoning is inherently more humane than the electric chair. Public officials have a human rights obligation to choose the specific drugs and methods of administration that carry the least risk of pain and suffering for the condemned. To date, they have not done so.
Dr. Jay Chapman, a medical examiner in Oklahoma with no pharmacology experience, came up with the three-drug protocol in 1977 used in U.S. executions. When Human Rights Watch interviewed him, Chapman told us that, "despite having no experience with this sort of thing," he had done no research before deciding on the drugs that should be used in lethal injections. In fact, when we asked why he chose the three drugs he did, he replied, "Why not?"
Texas, the nation's most prolific executioner by far, copied his formula and 37 states followed suit. No one consulted with toxicologists, anesthesiologists or other experts to assess the risks inherent in Chapman's choice of drugs or to determine if there were lethal injection options that would pose less risk of pain and suffering.
The first of the three drugs used in lethal injections is an anesthetic (sodium thiopental) to render the prisoner unconscious. Next is pancuronium bromide, a drug that paralyzes voluntary muscles, including the lungs and diaphragm, but does not affect consciousness or the experience of pain. The final drug is potassium chloride, which causes cardiac arrest.
If the prisoner does not receive a sufficient quantity of anesthesia he will feel himself suffocating from the pancuronium bromide. If he is still conscious when given the potassium chloride, he will feel his veins burning as the poison courses to his heart. Indeed, potassium chloride is so painful that U.S. veterinarian guidelines prohibit its use on domestic animals unless a vet first ensures they are deeply unconscious.
Incorrect dosage, faulty catheter insertion, kinking IV tubes - many problems can prevent anesthesia from working. No surgery would ever be conducted without assessing and continually monitoring the patient's level of consciousness. But during lethal injections, no one makes sure the prisoner is deeply unconscious before and during the injection of the second and third drugs.
States have fought hard to keep their execution records secret. But lawyers in some cases have succeeded in prying loose evidence that prisoners may have been conscious as they were killed. For example, logs from six executions in California reveal that prisoners' chests were still moving regularly up and down long after the anesthetic should have stopped their breathing -- suggesting they were awake and suffering. Toxicology reports from executions in North Carolina also suggest some prisoners had been inadequately anesthetized.
It is not surprising that lethal injections are not what the public hoped. The protocol was not sound when originally developed and advances in pharmacology and anesthesia administration have rendered it archaic at best, torturous at worst. Medical experts agree that there are other drug protocols that could be used in lethal injections that do not carry the same risks of excruciating pain.
For example, eliminating the pancuronium bromide would eliminate the risk that a paralyzed prisoner is insufficiently anesthetized but unable to move or say anything to alert witnesses or executioners. The only purpose of that drug is to keep the prisoner still, saving execution observers from having to witness the convulsions or other body movements that might otherwise occur from the potassium chloride. And saving corrections officials from the public relations consequences of such a troubling sight.
A federal judge in California has suggested replacing the three-drug protocol with a single injection of a massive dose of a barbiturate. Although it would guarantee a painless death for the prisoner, California officials rejected that option because it could take 30 to 45 minutes for the prisoner's heart to stop beating.
Corrections officials argue they are not constitutionally required to choose the execution methods that pose the least risk of pain. The Supreme Court will judge the merits of their legal argument. But we must judge the morality of their conduct.
Jamie Fellner is Senior Counsel in the US program at Human Rights Watch and co-author of "So Long as They Die: Lethal Injections in the United States."