LETHAL INJECTION: Moratorium on Executions Ends After Supreme Court Decision
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I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself. Baze v. Rees (2008) (Stevens, J., concurring). |
CONSTITUTIONAL ISSUE - U.S. SUPREME COURT REVIEW
ARBITRARINESS
OFFICIAL ACTIONS IN STATES
STAYS GRANTED
DRUGS USED IN STATES
STATEMENTS FROM MEDICAL ORGANIZATIONS
ADDITIONAL RESOURCES
See also:
DEATH PENALTY IN FLUX: States where executions are on hold
METHODS OF EXECUTIONS BY STATE
Information about the Romell Broom botched execution
ARBITRARINESS
Prior to the Supreme Court's granting certiorari in Baze v. Rees (see above), some executions were stayed while others were allowed to go forward. From the day after the Court agreed to hear Baze, all executions were stayed. In commenting on the earlier inconsistencies, Douglas A. Berman, an expert in criminal sentencing law at Ohio State University's Moritz College of Law, said: "I am sure the court is trying to apply some sort of sensible standard. But they need to do a heck of a lot better job explaining why." (Washington Post, Feb. 10, 2006). Since the Court's decision in Baze on April 16, 2008, execution dates have been set in many states, and some executions have taken place. In some states, no execution dates have been set as the lethal injection issue remains unresolved.
In dissenting from a 6th Circuit refusal to grant a stay based on a lethal injection challenge to Tennessee inmate Sedley Alley, Judge Boyce Martin, Jr., wrote: "[T]he dysfunctional patchwork of stays and executions going on in this country further undermines the various states' effectiveness and ability to properly carry out death sentences. We are currently operating under a system wherein condemned inmates are bringing nearly identical challenges to the lethal injection procedure. In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result." (Alley v. Little, No. 06-5650 (6th Cir. May 16, 2006) (Martin, J., dissenting from denial of a rehearing en banc)).
See also U.S. District Court Judge Gregory Frost's opinion in Cooey v. Taft (denying a stay for John Spirko in Ohio):
"[T]his Court is now confronted with two different unreported decisions by two different appellate panels, both concerned with the same issues of law and both reaching wholly opposite, unexplained results.
. . .
This Court's inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice."
DRUGS USED IN VARIOUS STATES
Thirty-five of the 36 death penalty states authorize lethal injections for their executions. Nebraska uses the electric chair. Almost all the states use the same 3-drug combination for lethal injections: sodium pentothal (an anesthetic, also called Thiopental sodium), pancuronium bromide (a paralytic agent, also called Pavulon), and potassium chloride (stops the heart and causes death).
According to research of state execution protocols conducted by Prof. Deborah Denno of Fordham University Law School and further research by DPIC, the following states use the above three drugs, unless otherwise indicated:
| Method | Three- Drug Combination | Drugs Not Specified | Other | |
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| State | Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Idaho Illinois Indiana Louisiana Maryland Mississippi Missouri |
Montana South Dakota Tennessee Texas Utah Ohio Oklahoma Oregon New Mexico Washington Wyoming |
Alabama Kansas Kentucky Nevada New Hampshire Pennsylvania South Carolina Virginia |
New Jersey - would have used only Thiopental sodium and pancuronium bromide Nebraska - adopted lethal injection in 2009; protocol being developed |
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See D. Denno, "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us," 63 Ohio State Law Journal 63 (2002).
Notes:
Illinois - moratorium on executions in place
New Jersey - death penalty abolished, Dec. 2007
New York - statute held unconstitutional; no longer considered a death penalty state
New Mexico - death penalty abolished, March 2009, but 2 inmates remain on death row
Ohio - executions on hold as state develops changes to protocol to deal with botched execution attempt of Romell Broom on Sept. 15, 2009
In federal executions, the method is determined by the state in which the sentencing took place. All 3 of the federal executions in the modern era have been by lethal injection carried out in a federal facility in Indiana. Apparently the same 3-drug combination is used, though prison officials did not reveal the exact ingredients. (See Washington Post, Dec. 5, 2000).
ADDITIONAL RESOURCES
New Execution Protocols
Delaware's new execution protocol (Aug. 31, 2007)
Ohio's new execution protocol (Jan. 2008)
Georgia's new execution protocol (June 7, 2007) - provides for physician assistance with execution
California's proposed Lethal Injection Protocol (May 15, 2007).
Florida's new Lethal Injection Protocol (May 9, 2007)
Tennessee's new Lethal Injection Protocol (April 30, 2007)
South Dakota's new execution protocol (Aug. 8, 2006; rev, July 1, 2007)
U.S. Military's new execution protocol (Jan. 2007)
Articles and Reports
- Amnesty International "Execution by Lethal Injection: A Quarter Century of State Killing," (October 2007)
- Ellen Kreizberg and David Richter, "But Can it Be Fixed? A Look at Constitutional Challenges to Lethal Injection Executions," Santa Clara University School of Law, Legal Studies Research Papers Series, Working Paper No. 07-28 (June 2007); 47 Santa Clara L. Rev. 445 (2007).
- Deborah Denno, "The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty," Fordham Legal Studies Research Paper No. 983732 (May 1, 2007); 76 Fordham L. Rev. 49 (2007).
- Henry Weinstein and Maura Dolan, "The Chaos Behind California Executions," L.A. Times, Oct. 2, 2006 (hearings in California on lethal injections).
- Ty Alper (Boalt School of Law), "Lethal Incompetence," The Champion, Sept.-Oct. 2006.
- Douglas Berman, "Finding Bickel Gold in a Hill of Beans," Cato Supreme Court Review, 2006 (on the legal ramifications of Hill v. Crosby).
- Human Rights Watch Report on Lethal Injection
Legal Resources
- Boalt Law School Web site - an extensive collection of court opinions and legal briefs filed related to recent lethal injection challenges around the country.
- Resources related to challenges to lethal injection in Arizona.
- U.S. District Court Judge Aleta Trauger's ruling holding Tennessee's lethal injectioon protocol unconstitutional (Sept. 19, 2007)
- U.S. Court of Appeals for the Eighth Circuit ruling in Taylor v. Crawford, June 4, 2007, upholding Missouri's lethal injection process.
- U.S. District Judge Fogel's Request for Additional Briefing on certain questions following Sept. 2006 hearings (California challenge)
- U.S. District Judge Fogel's Original Order in Morales
- U.S. District Judge Fogel's Second Order in Morales
- Decision of Appellate Division of New Jersey Superior Court ordering a hold on executions to allow clarification of lethal injection procedures
- Petition for Certiorari, granted by the U.S. Supreme Court, in Hill v. Crosby
- Petition for certiorari filed in Abdur'Rahman v. Bredesen, a Tennessee capital case in which the issue of lethal injection has also been raised (cert. denied, May 22, 2006).
- U.S. District Court order in North Carolina regarding lethal injection of Willie Brown on April 21, 2006.
DPIC Resources
- News & Developments: Current and Previous Years (includes developments related to other execution matters as well as lethal injection)
- Methods of Executions and Arbitrariness
- DEATH PENALTY IN FLUX: Recent legislation and list of states where executions are on hold
- Botched Executions (compiled by Prof. Michael Radelet)
- DPIC's Press Release, Sept. 17, 2006
From DPIC
The Botched Ohio Execution and Supreme Court Precedents
On September 15, 2009, the state of Ohio failed in its attempt to execute death row prisoner Romell Broom. Guards spent two hours unsuccessfully trying to find suitable veins for the lethal injection, even with Broom's assistance. At first, the execution was set for a week later, but the question of whether Ohio will be allowed to attempt the execution a second time has raised many constitutional questions. Would such repeated attemps constitute cruel and unusal punishment that is banned by the Eighth Amendment? Was the first attempt equivalent to "torture or a lingering death," or to forced experimentation on a human subject? Would that apply to a second attempt? Should other Ohio inmates be subject to the same uncertain process? What follows are relevant excerpts from U.S. Supreme Court rulings and opinions of individual Justices on the constitutional limits of state punishment.
"Punishments are cruel when they involve torture or a lingering death . . ." In re Kemmler, 136 U.S. 436, 447 (1890). ‡ "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards." Trop v. Dulles, 356 U.S. 86, 100 (1958). ‡ "This punishment (stripping a person of citizenship) is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress." Trop v. Dulles, 356 U.S. 86, 102 (1958). ‡ "Taking human life by unnecessarily cruel means shocks the most fundamental instincts of civilized man. It should not be possible under the constitutional procedure of a self-governing people. Abhorrence of the cruelty of ancient forms of capital punishment has increased steadily until, today, some states have prohibited capital punishment altogether. It is unthinkable that any state legislature in modern times would enact a statute expressly authorizing capital punishment by repeated applications of an electric current separated by intervals of days or hours until finally death shall result." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 473-74 (1947) (Burton, J., dissenting with 3 other Justices). ‡ "Although the failure of the first attempt, in the present case, was unintended, the reapplication of the electric current will be intentional. How many deliberate and intentional reapplications of electric current does it take to produce a cruel, unusual and unconstitutional punishment? . . . Lack of intent that the first application be less than fatal is not material. The intent of the executioner cannot lessen the torture or excuse the result. It was the statutory duty of the state officials to make sure that there was no failure." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 476-77 (1947) (Burton, J., dissenting with 3 other Justices). ‡ "The true significance of these (unconstitutional) punishments is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the (cruel and unusual punishments) Clause that even the vilest criminal remains a human being possessed of common human dignity." Furman v. Georgia, 408 U.S. 238, 272-73 (1972) (Brennan, J., concurring). ‡ "[A]lternatives (to the current method of lethal injection) must effectively address a 'substantial risk of serious harm.' To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State's refusal to change its method can be viewed as 'cruel and unusual' under the Eighth Amendment." Baze v. Rees, No. 07-5439 (U.S. 2008).
More information on the Broom execution-attempt can be found here. See also Botched Executions and Lethal Injection. |
Related Items
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OHIO'S LETHAL INJECTION PROCESS UNCONSTITUTIONAL
Judge Requires One-Drug Protocol In a pre-trial ruling in Ohio v. Rivera and McCloud, Judge James Burge of the Lorain County Court of Common Pleas has ruled that Ohio's death penalty statute, requiring that executions be carried out "quickly and painlessly," implies that the state must use a single anesthetic rather than the current 3-drug protocol. Read the Court's Order, June 10, 2008. |
| Excerpts
from the Supreme Court Opinion in Baze v. Rees April 16, 2008 |
 Opinion of the Chief Justice announcing the judgment of the Court "Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions." Concurring Opinion of Justice Alito "The issue presented in this case—the constitutionality of a method of execution—should be kept separate from the controversial issue of the death penalty itself. If the Court wishes to reexamine the latter issue, it should do so directly, as JUSTICE STEVENS now suggests." Concurring Opinion of Justice Stevens "The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive." Concurring Opinion of Justice Scalia "I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views—which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution." Concurring Opinion of Justice Thomas "[A] method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. . . ." Concurring Opinion of Justice Breyer "The death penalty itself, of course, brings with it serious risks, for example, risks of executing the wrong person, risks that unwarranted animus (in respect, e.g., to the race of victims), may play a role, risks that those convicted will find themselves on death row for many years, perhaps decades, to come. These risks in part explain why that penalty is so controversial. But the lawfulness of the death penalty is not before us." Dissenting Opinion of Justice Ginsburg "Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain." Read the entire opinion. See Lethal Injection. |
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Fordham
Urban Law
Journal Symposium New York March
7-8, 2008
Richard Dieter, DPIC's Executive Director, presenting at the Fordham Law School Conference on Lethal Injection
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