Tuesday, April 22, 2008

SCOTUS Approves of Kentucky's Lethal Injection Scheme

SCOTUS recently entertained an 8th Amendment challenge to Kentucky's method of execution--lethal injection. In Baze v. Rees, the court held that Kentucky's three drug protocol (modeled after Oklahoma's scheme, and followed by 35/36 states, and the federal government, that have Death Penalty schemes) did not violate the 8th Amendment's prohibition against cruel and unusual punishment.
Before delving into the opinion, it is necessary to understand some preliminaries. The three drug "cocktail" consists of an initial dosage of sodium thiopental, a heavy barbiturate that induces a coma-like sleep; a second dosage of pancuronium bromide, a paralytic agent that stops all muscular-skeletal movements and induces suffocation by paralyzing the diaphragm; and finally a dosage of potassium chloride, which induces cardiac arrest. Kentucky has trained IV technicians inject the defendant, from another room, via a 5 foot IV line. The three drugs are administered separately, and there is a gap between the first and second drugs, to ensure the barbiturate has taken effect. All parties agree that if the cocktail is administered properly, the dosage of sodium thiopental will prevent the defendant from feeling any pain. Finally, the plurality and dissent agree with petitioner that if the cocktail is not administered properly, the defendant will experience excruciating pain, which would violate the 8th Amendment.
Petitioner challenges the protocol based on a significant risk that the protocol will not be administered properly, and if not the paralytic agent will prevent the defendant from being able to alert the administrators that he is feeling pain--resulting in a slow, agonizing death by suffocation and cardiac arrest. There are four important opinions as I see it:

ROBERTS, KENNEDY, ALITO plurality: As stated above, the plurality agrees that should the defendant suffer the amount of pain alleged, there would be an 8th Amendment violation. However, the plurality sets the standard for a challenge at a "substantial" or "objectively intolerable" risk of serious harm. The plurality would measure three factors: the degree of risk, the magnitude of pain, and the availability of an alternative. Based on a few factors to be explained below, the plurality found that petitioner had not carried their burden of proof.

STEVENS concurrence: STEVENS writes that the opinion will cause a flood of litigation in which the protocol adopted by every state will be challenged. He discussed elements of the creation and implementation of the protocol that he believes will be the subject of endless litigation here forward. However, the true thrust of his opinion is a renewed attack on the Death Penalty generally--arguing that the penalogical purposes initially identified as supporting the Death Penalty no longer serve as acceptable justifications for such a punishment.

THOMAS, SCALIA concurrence: THOMAS agrees with the plurality that petitioner failed to satisfy his burden of proof, but THOMAS would go one step further--he argues that the proscription of cruel and unusual punishment was intended to prevent intentional pain. He points to the practice at the time of framing of superadding pain onto the punishment of death (by such methods as burning at the stake, beheading, and disembowling). He argues these practices fell out of favor in the framers' day, and that it was this type of superadding of pain they aimed to prevent. According to THOMAS excruciating pain is not offensive of the 8th Amendment, so long as it was unintended.

GINSBURG, SOUTER dissent: GINSBURG would remand for consideration of whether the Kentucky scheme creates an "untoward, readily avoidable risk of infliciting severe and unnecessary pain." Moreover, she would treat the three factors (degree of risk, magnitude of pain, and availability of an alternative) as interrelated questions, not with a fixed threshold, but instead to be measured against each other. Thus, if the magnitude of pain was great enough, there wouldn't need to be a showing of such great risk, etc... She also discusses the fact that veterinary medicine prohibits euthanizing animals with a similar cocktail.

Finally, I wanted to address a few points from the plurality. The plurality finds the Kentucky scheme to be effective because the IV technicians are experienced and trained. However, the "training" consists of 10 practice sessions a year, and the experience is not medical training, but rather one year of experience with IVs. Moreover, the IV technicians are given up to one hour to properly insert the IV. During argument, expert opinion was presented that indicated if an IV was not properly inserted within 15 minutes or so, insertion would be futile and the dosage would be delivered to muscle tissue, rather than the bloodstream--rendering the barbiturate ineffective and causing excruciating pain. Next, the Court points out that the warden and deputy warden are watching from another room, and are charged with stopping the proceedings if anything goes wrong. Leaving aside for a moment the argument that the warden and deputy warden might not be so concerned about whether the defendant is undergoing pain, the fact that the warden is there cannot count for much--he's not a trained medical technician, there is no up-close examination of the defendant, the warden is simply standing in the other room waiting to see if in the 60 seconds between the barbiturate and the paralytic agent the defendant does anything to indicate he might not have gotten the first drug properly. This is not such a great safeguard, in my opinion. Further, the court mentions that this procedure has been used once in Kentucky and there was no evidence it did not go according to plan. This argument completely misses the point--the paralytic agent prevents the defendant from moving at all, from even twitching. Even if the defendant was experiencing excruciating pain, no one would know--that's the very premise of petitioner's challenge! This statement also ignores claims from oral argument that there is evidence form other states that the protocol has failed around 50% of the time.
Last and most importantly, the Court says the paralytic agent is necessary to preserve the dignity of the proceeding and to shield the observers from worry that the defendant is in pain (by preventing involuntary twitches and spasms, etc...) Again, this seems to miss the bigger picture. As to dignity--I would imagine most defendants would be willing to sacrifice a bit of dignity if it ensured they didn't die an excruciating death. As for the observers--this begs a bigger question. If the sight of watching someone squirm and twitch while dying is so displeasing, why are people watching at all? If the average person is so offended by the death of another (even a convicted murder), that we need to anesthetize the entire process, why do we endorse the Death Penalty to begin with? The anesthetizing of the process masks from the observer what is really happening to the defendant during execution. The need to anesthetize seems to indicate that the average observer would not support the Death Penalty if they were really exposed to what death entails.

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