WHAT JUST HAPPENED?
Many words can be employed to fit the description of Donald Trump’s last days in office. The contempt he had demonstrated for national institutions, the electoral process and Joe Biden, his lack of grace in defeat, his inflammatory rhetoric… We equally observed his ruthless step-up of federal executions[1].
WHAT DOES THIS MEAN?
Little was discussed with regard to the method by which the lives of the condemned had been terminated, that being lethal injection. It is important, under the 8th Amendment of the U.S Constitution, that no person shall suffer from ‘cruel and unusual punishment’[2], which means the possibility of lethal injection constituting cruel and unusual punishment, is a potential gross violation of U.S constitutional law and indeed public international law. Between 2014-2017, at least four people’s executions have led to a silent yet gruesome horror, including that of Kenneth Williams in Arkansas.
How does lethal injection work and the problems that arise:
The inmate is strapped to an object designed to resemble a surgical bed, and they are injected with 3 drugs[3] which can vary. The first of those is a barbiturate anaesthetic (sodium thiopental), the second is a paralytic/muscle relaxant such as pancuronium bromide, cutting the communication between the nerves and the muscles and causing asphyxiation, and the third is generally potassium chloride, designed to cause cardiac arrest[4]. [5]
How Does Lethal Injection Work? What Happens If It Fails?
When things go wrong:
A 2005 study from Virginia and Florida, two states retaining the use of capital punishment, enlightens us on the gruesome details of the complications that can and do arise. This study has concluded that the dose of 2-3 grams of sodium thiopental used in those executions is not guaranteed to lead to the intended loss of sensation since those administering the dose are often unskilled, the duration of the execution[6] and extreme anxiety within inmates whose bodies are ‘flooded with adrenaline’[7], meaning a higher dose would be required to fulfil the required level of sedation. Without the adequate anaesthesia, the remaining injections of drugs would cause asphyxiation, severe burning sensation, massive muscle cramping and cardiac arrest’[8] all while in a conscious and sentient state.
The possibilities of extreme suffering as stipulated by the study are further exacerbated by the frequent use of the drug ‘midazolam’ as an anaesthetic. David Waisel, Associate Professor of Anaesthesia, deems the drug ineffective in putting the inmate to sleep[9], while the anaesthetic is veritably the key and sole component standing a chance of ensuring a pain-free execution. What is particularly disturbing about this gruesome eventuality is that the muscle relaxant incapacitates the inmate to the extent that they have no way of exhibiting or expressing their pain and suffering. This renders it especially difficult for the executioners or witnesses to recognise any signs of such occurrences. Midazolam has been at the forefront of lethal injection controversy with numerous complaints citing the 8th Amendment, to the point where the Supreme Court itself remains indecisive over the propriety of its use[10].
In 2017, the State of Florida has approved the use of Etomidate (an untested hypnotic drug[11]). Attorney Cynthia Ventura had highlighted the lack of empirical research surround the efficacy of the drug[12], placing further question marks surrounding the true experience of the condemned during the execution.
In the case of Asay v. State, the Florida Department of Corrections’ refusal to disclose the identity of the drug manufacturer was overruled by the Florida Supreme Court, leading the facts to demonstrate that the manufacturer stated explicitly that the use of those drugs for the purposes of capital punishment would be an incorrect use of the products[13]. In many instances however, disclosure is not enforced and the source of the drugs remains unknown, to the extent that certain states have passed legislation according their respective DOCs a privilege of secrecy regarding the details of their use of lethal injection[14].
Convicted murderer Mark Asay was put to death using a combination of three drugs. One was a sedative called etomidate.
HOW DOES THIS IMPACT THE LEGAL SECTOR?
Ventura reminds us that the courts require that ‘the substantial risk of harm must be objectively intolerable’ in order for a method of execution to be reviewed in accordance with the 8th Amendment. Since what is in question here is the upholding of U.S constitutional rights, it is for the Supreme Court to suspend the use of lethal injection across the country until the necessary evidence is disclosed or procedural reform is enacted. The state has a positive duty to act to prevent unnecessary pain and suffering, especially when we dispose of conclusive evidence establishing the existence of actual pain and suffering.
Ultimately, lethal injection seems to be the last leg upon which stands the body that is the retainers of the death penalty, it appears humane and painless to the naked eye, and therefore offers the public a seeming escape from the inherently barbaric image of state sanctioned killing. It is for that reason that effectively engaging with and confronting the true essence of the problems with the method may be perceived by certain political and legislative elements as problematic and may be a catalyst to increased support for abolitionism. A true investigation into the reality of lethal injection may well represent the end of capital punishment in the U.S, perpetuated by the content of Biden’s criminal justice manifesto.
Written by Mohammad Al Khateeb
ASSESSING FIRMS
#Linklaters #Clifford Chance #Slaughter&May #White & Case #Bird&Bird #RPC #McGrath Nicholl #ShooSmiths #Kennedys #Pinsent Masons #Accenture #Latham & Watkins #Goldman Sachs #JP Morgan #King Wood Malleson# @KTS_Law @StatewatchEU
References:
[1] Jonathan Allen ‘U.S to carry out 13th and final execution under Trump administration’, Reuters, January 15th 2021
[2] Eighth Amendment, Legal Information Institute (Cornell Law School)
[3] Deborah W. Denno, ‘Lethal Injection’, (Britannica)
[4] IBID
[5] Wade Goodwyn, ‘Botched Lethal Injection Executions Reignite Death Penalty Debate’, National Public Radio, January 6th 2015
[6] Alison Motluk, ‘Execution by injection far from painless’, The New Scientist, April 14th 2005
[7] IBID
[8] IBID
[9] David Waisel, ‘The drugs we use for executions can cause immense pain and suffering’, The Washington Post, May 11th 2017
[10] Cynthia Ventura, ‘LETHAL INJECTION OR LETHAL LITIGATION’, (St Thomas Law Review), Vol.31, Issue 1, Fall 2018
[11] Tokunbo Salako, ‘Florida uses untested drug to execute double murderer’, EuroNews, August 25th 2017
[12] Cynthia Ventura, ‘LETHAL INJECTION OR LETHAL LITIGATION’, (St Thomas Law Review), Vol.31, Issue 1, Fall 2018
[13] IBID
[14] ‘Civil Procedure - Lethal Injection Secrecy - Eleventh Circuit Denies Mississippi Death Row Prisoners Discovery by Creating a Federal Lethal Injection Secrecy Privilege - Jordan v. Commissioner, Mississippi Department of Corrections, 908 F.3d 1259 (11th Cir. 2018)’, (Harvard Law Review), Vol.133, Issue 2, December 2019
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.