Believed to be a more humane and less expensive method of execution, lethal injection is the practice of killing an individual using a lethal dose of drugs administered intravenously, which involves firstly anaesthetising the individual, followed by a paralytic agent, before stopping the heart. Known as “Carson’s Cocktail”, this “deadly mixture” was devised by a pathologist from Oklahoma as a “humane” alternative to the electric chair.
Whilst often believed to be a painless death, as encapsulated in Justice Scalia’s remarks in Callins v Collins – “how enviable a quiet death by lethal injection” – it is increasingly believed that the lethal injection may in fact inflict excruciating pain. The selection of drugs, the procedure and the absence of medically trained personnel are often at the heart of challenges to the procedure. Medical professionals often refuse to participate in executions, leading the drugs to be administered by prison officials, in spite of the complexity and precision of the procedure. Perhaps it is simply that the lethal injection embodies a greater psychological distance from killing another human being, due its appearance as a medical procedure as opposed to an execution which renders it “more palatable to the general public”.
Recent cases have brought the brutality of the lethal injection into stark view, leading to a greater scrutiny of procedures. Executions involve the use of neuromuscular blocking agents such as pancuronium bromide which has created a danger of masked suffering as it prevents offenders from communicating verbally or physically, thus the offender may in fact be experiencing excruciating pain behind a paralysed face. Over thirty states have banned the use of the agent in the euthanasia of animals, revealing the extent of the inhumanity of its continued use on US citizens. Furthermore, if an individual fails to be properly anaesthetised, the third drug in the cocktail (potassium chloride) “acts as a fire moving through the veins” – the individual could experience asphyxiation, muscle cramping and cardiac arrest. “My body is on fire” were the last words of Charles Warner, who was executed in Oklahoma in 2015, echoing the words of Michael Lee Wilson a year earlier, whose final words were “I feel my whole body burning”. An autopsy report reveals that Warner was injected with the wrong drug.
Moreover, according to Amnesty International, “autopsies have shown severe, foot long chemical burns to the skin, yet many states refuse to retain post-mortem records of the execution procedure. Additionally, protocols fail to provide details on the training, credentials, or experience required of the execution team. The absence of any form of revision of lethal injection protocols mean that developments in the medical field fail to be mirrored in execution procedures.
In Morales v. Hickman a prisoner from California sought a stay of execution so that a full evidentiary hearing on his Eighth Amendment challenge to the state’s lethal injection procedure could be conducted. The Eighth Amendment to the US Constitution prohibits the state from imposing cruel and unusual punishment upon its citizens. He presented the court with six execution logs which suggested that the suspects were still breathing and conscious during the administration of drugs. Indeed, a study conducted by Koniaris et al in 2005 of post-mortem blood levels of anaesthetic found that 21 out of 49 inmates may have been “fully aware” and yet simultaneously unable to communicate their suffering due to the muscle relaxant, leading Koniaris to conclude that the lethal injection is “a perverted medical practice”.
In 2014 Oklahoma inmate Clayton Lockett began writhing, clenching his teeth and straining to lift his head off the pillow after the first drug in the lethal injection cocktail had been administered, which was supposed to render him unconscious. Described by the prison warden as “a bloody mess”, Lockett died 43 minutes after the first drug was administered. Arguably the US possesses “short-term memory problems” with regards to botched executions, which clearly explains their long history. Once the collective outrage over Lockett’s death subsided, the lethal injection practice resumed; in Florida on the 18th June 2014, John Ruthell Henry was executed, marking the third execution in a 24-hour period since Lockett’s death.
Similarly, in Alabama in December 2016, using the “controversial sedative midazolam”, Ronald Bert Smith Jr. “heaved, gasped and coughed while struggling for breath for 13 minutes after the lethal drugs were administered, and death was pronounced 34 minutes after the execution began”. He also “clenched his fists and raised his head during the early part of the procedure.” In April 2017 Arkansas witnessed the execution of Jack Jones – after taking over 45 minutes to locate a vein to insert the IV, Jones did not lose consciousness after midazolam was administered and he instead “continued to move his lips and gulp for air. It was another 14 minutes before he died”. A number of inmates have awoken during their executions as midazolam has stopped working, leading US Supreme Court Justice Sonia Sotomayor to compare it to “a hangman’s poorly tied noose”.
A “veil of secrecy” permeates the law surrounding the lethal injection, with many questioning the origins of drugs used in executions. In 2011, the Drug Enforcement Administration seized large supplies of sodium thiopental in several states and questioned how the drugs were imported. Furthermore, the drugs used in lethal injections have become increasingly scarce after the European Union introduced a ban on their export to US states where the death penalty remains in operation via the Commission Implementing Regulation (EU) No 1352/2011. The Regulation concerns the trade of certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.
However, while the Regulation has significantly slowed the rate of executions, as an unintended consequence states have implemented laws “shrouding their suppliers in secrecy” and have begun to experiment with completely untested drugs, often from unidentified and unregulated pharmacies. In August 2017 Mark Asay was executed in Florida with an anaesthetic which had never used before in a US lethal injection as drug companies had restricted sales of midazolam. Similarly, scheduling its first execution in six years, of Bobby Wayne Stone in December 2017, South Carolina has been unable to obtain the drugs necessary to undertake the execution, thus the governor has called for a law to protect the drug suppliers’ identity.
The continued occurrence of botched executions has served to reinvigorate arguments that the use of the lethal injection violates the Eighth Amendment, amounting to the imposition of cruel and unusual punishment. Arguably, according to Sarat, “botched executions remind us of the ferocity of the state’s sovereign power over life itself”, and form a challenge to the desirable notion concocted by the state of the death penalty being “quick, clean and painless”, thereby raising questions about the defendant’s suffering.
Detailing the brutality of the practice, Sotomayor declares that “prisoners executed by lethal injection are suffering horrifying deaths beneath a ‘medically sterile aura of peace’… what cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet.”
Written by: Francesca Esposito
Contax Law supports Francesca Esposito in her journalism so that she can express her voice on a subject she highly values. Francesca graduated from the University of Warwick in 2015 with a 2:1 in the Bachelor of Laws (LLB) and spent her third year studying abroad in the Netherlands at Universiteit Utrecht. She was awarded a Distinction in the Master of Laws (LLM) at University College London, specialising in Criminal Justice and Social Welfare. As an avid writer, Francesca has had several articles published and has also had positions on editorial boards for legal publications both in the UK and overseas.
Francesca is extremely passionate and captivated by the field of Human Rights, driven by her study of Gender and the Law during her LLB, which motivated Francesca’s desire to scrutinise the human rights violations faced by individuals around the globe.