The Supreme Court decision in the death penalty case Baze et al v. Rees, Commissioner, Kentucky Department of Corrections, et al decided April 16, 2008 on a 7-2 vote is not just a bad decision but an impossibly bad one. At issue was whether execution by lethal injection of a 3 drug cocktail of sodium thiopental (to induce unconsciousness), pancuronium bromide (to produce skeletal muscle paralysis), and potassium chloride (to induce cardiac arrhythmia leading to cardiac arrest) constituted an 8th Amendment violation of the prohibition on “cruel and unusual punishments.” This execution method has been approved for use by some 30 states and the Federal Government. So what’s the problem? Death by lethal injection is by the nature of its purpose a significant medical procedure. Yet it is not carried out by medical professionals nor monitored by a physician. The reason for this is simple. Such activities on their part would violate their professional oaths.
As in the “partial birth abortion”, i.e. intact dilation and extraction case Gonzales v. Carhart (item 26), the Supreme Court has once again set itself up as a medical authority and once again shown that it has none. The Court notes that Kentucky mandates that the insertion of the two sets of IVs needed for the execution be performed by “qualified personnel having at least one year’s professional experience.” While this may seem sufficient, the reality is that one year’s experience in the medical profession (physician, nurse, EMT) gives you just enough knowledge and confidence to be dangerous. You see it isn’t just about putting a needle into a vein but knowing what to do if there is a problem (the line becomes clogged, the vein occludes, the vein is perforated, etc.) at some point in the process.
The Court is also dodgy on preparation of the syringes for the lethal injection. At one point, it states that this is left to unnamed “others” raising the suspicion that it is in fact being done by medical personnel in violation of professional ethics. On the other hand, Justices Roberts, Kennedy, and Alito relied on the state court’s finding that “there would be minimal risk of improper mixing if the manufacturers’ thiopental package insert instructions were followed.” I suppose the same argument could be made if you gave a copy of surgical procedures to a nurse and asked him/her to remove your appendix. Or say if after Roberts’ seizure on July 30, 2007 his anti-convulsant therapy was overseen by the hospital administrator because he/she could read the label as well as anyone.
The Court leaves to the warden and deputy warden the determination of whether the prisoner is unconscious within 60 seconds of the injection of sodium thiopental and if not “a new dose will be given at a secondary injection site before the second and third drugs are administered.” In other words, the Court leaves to non-medical personnel a medical assessment and determination. Can these people really determine or know how to determine if the prisoner is stuporous, lightly comatose, or deeply comatose?
This brings up the use of the second drug pancuronium bromide. If the prisoner is indeed completely unconscious, what need is there for the use of a muscle relaxant to produce a flaccid paralysis? This is especially important because injection of the third drug in a conscious if paralyzed patient would be accompanied by extreme burning in the injected vein. Additionally, the paralytic action of the second drug could cause a smothering sensation as well.
The legal arguments fare no better. There is a Twilight Zone quality about them. Roberts, Kennedy, and Alito affirm that “To constitute cruel and unusual punishment, an execution method must present a “substantial” or “objectively intolerable” risk of serious harm.” Being killed is not harm, good to know.
Justice Stevens argues “Moreover, although experience demonstrates that imposing that penalty constitutes the pointless and needless extinction of life with only negligible social or public returns, this conclusion does not justify a refusal to respect this Court’s precedents upholding the death penalty and establishing a framework for evaluating the constitutionality of particular execution methods.” So although he thinks the death penalty is idiotic, Stevens supports it because of the Court’s long history of supporting idiocy.
Thomas and Scalia cite Wilkerson v. Utah to argue that an 8th Amendment violation can only come about if the execution is “deliberately designed to inflict pain,” that is incidental pain even if it is excruciating is OK.
The seventh justice Breyer takes a more Pontius Pilate approach. He has concerns about the method of execution and about the death penalty in general but not enough to vote no.
Supreme Court decisions on the death penalty have not, let us say, been felicitous, which makes some of the key decisions cited even more bizarre. Wilkerson v. Utah (1878) the first death penalty case the Court heard sanctioned death by firing squad because it did not inflict “pain for the sake of pain.” Wilkerson was duly shot but apparently did not die immediately. So there was something lingering, indeed “something inhuman and barbarous” and “more than the mere extinguishment of life” about his death. Similarly, in Kemmler the first execution by electric chair, the Court upheld death by electrocution because it was created “in the effort to devise a more humane method of reaching the result.” It was in fact a sales gimmick by Thomas Edison to promote electricity (of the direct current kind). Kemmler (1890) was fried for 17 seconds. The smell was so bad that some of the witnesses had to leave. He was pronounced dead until someone noticed he was still breathing, at which point electricity was again applied. Louisiana Ex Rel. Francis v. Resweber (1947) is another case cited where the electric chair did not kill the prisoner. The execution was stopped and the case was appealed in part on 8th Amendment grounds. The Court held that mishaps don’t count and Francis was executed a second time. It came out later that the executioners at the first execution were drunk.
You would think that this kind of judicial record would engender a certain humility, but you would be as wrong as this Supreme Court has been. What is at the heart of the current case Baze v. Rees is capital punishment involving a medical procedure performed by non-medical personnel with all the irreconcilable conflicts and questions that entails. The Court’s solution was not to confront this issue but to play doctor instead.