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FindLaw's Writ - Dorf: How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality

How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality

By MICHAEL C. DORF
Monday, Apr. 21, 2008

Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection. To say that the case divided the Justices would be a gross understatement. There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions.

In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case. In the long term, the decision's likely impact is unclear.

The controlling opinion of Chief Justice Roberts finds insufficient evidence in the record to support a conclusion that Kentucky's administration of its three-drug lethal injection poses a "substantial risk of serious harm," and thus to warrant the Court's ruling that it constitutes cruel and unusual punishment in violation of the Eighth Amendment. However, the Chief Justice's opinion leaves open the possibility that such evidence might be found in a different case from a different state. For the next few years, therefore, we are likely to see challenges to the application of lethal injection in various states, and eventually the issue may return to the Supreme Court.

Whatever the ruling's ultimate practical impact may be, however, the Baze decision is important for the mode of reasoning the Court employs. The controlling opinion by Chief Justice Roberts--joined by Justices Kennedy and Alito--appears to endorse the proposition that the state can expose people to an increased risk of an excruciating death on what amount to merely aesthetic grounds.

Lethal Injection As Practiced

Kentucky, like most states, executes prisoners by lethal injection through a three-drug protocol. First, it administers a sedative, sodium thiopental, to render the prisoner unconscious. Next, the executioner introduces a paralytic, pancuronium bromide, which inhibits all movement, including breathing. Finally, potassium chloride stops the heart by inducing cardiac arrest.

The petitioners in the Baze case acknowledged that, if carried out properly, this three-drug protocol results in a painless death. However, they contended that for a number of reasons--including the refusal, on ethical grounds, of physicians and nurses to participate in executions--in actual practice the three-drug protocol exposes prisoners to the risk of a terribly painful death.

In particular, the petitioners complained that without close monitoring of the prisoner by a medically-trained expert, he could be given an insufficient dose of sedative to render him unconscious. At that point, he would be conscious while experiencing suffocation and cardiac arrest due to the second and third drugs, but because the pancuronium bromide had left him paralyzed, he would show no outward signs of distress.

Accordingly, the petitioners argued that Kentucky and other states should be forbidden from using a paralytic agent such as pancuronium bromide, and should rely instead on either a sedative alone, or a combination of a sedative and a heart-stopping agent.

The Ruling

Two Justices--Ginsburg and Souter--agreed that Kentucky had not done enough to ensure that prisoners were not being made to suffer needlessly excruciating deaths. They would have remanded the case for further factual inquiry into "whether Kentucky's omission of" safeguards to ensure that the prisoner is truly unconscious before the administration of the pancuronium bromide and potassium chloride "poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

However, seven Justices rejected the challenge to Kentucky's procedure. Two of the seven--Thomas and Scalia--took an extreme position: A method of execution cannot be deemed cruel and unusual so long as it was not adopted for a cruel purpose. In their view, because lethal injection was adopted to make the death penalty more humane than other methods, such as the electric chair, it cannot be considered cruel--even if, from the perspective of some prisoners condemned to die by lethal injection, it proves to be excruciating, and even if the state, through readily available means, could substantially reduce the risk that any individual prisoner will experience excruciating pain during his execution.

The other five Justices in the majority agreed in principle with Justices Ginsburg and Souter that the state has a duty to reduce the risk that a prisoner will be subject to severe pain during his execution. However, all five thought the record as it had been compiled in the district court did not make out a sufficient case to establish the existence of an unacceptably high risk.

These five Justices also disagreed among themselves about how difficult or easy it would be for prisoners in other states to challenge the administration of the three-drug protocol based on different evidence. Justice Stevens thought that there was no way to avoid a great deal of further litigation and, for that reason, urged states to switch to a protocol that does not include a paralytic or, better yet, to abolish the death penalty altogether. (Justice Stevens also indicated that he was ready to reconsider the Court's longstanding view that the death penalty itself is not cruel and unusual punishment, thereby drawing a spirited rejoinder on this point from Justice Scalia.)

By contrast with Justice Stevens, Justice Alito wrote that he thought further as-applied challenges to three-drug protocols would likely fail. Justice Alito emphasized that to demonstrate that the three-drug protocol imposes an unnecessary risk of severe pain, substantially safer protocols must be available, but that the ethical constraints on medical professionals' assisting in an execution make it impossible to say that closer medical monitoring of prisoners during executions would be an available (as opposed to a theoretical) alternative.

The Relevance of Dutch Euthanasia

Much of the debate among the Justices in Baze turned on the use of the paralytic agent pancuronium bromide. Is its inclusion in the execution protocol unconstitutional? To answer that question, some of the Justices addressed the drug's use in other contexts.

For example, the Justices disputed the significance of the fact that some states--including Kentucky--bar the use of pancuronium bromide by veterinarians euthanizing animals. As FindLaw columnist Sherry Colb noted in an earlier column on the Baze case, the argument that states therefore value non-humans more highly than humans is strained, given how little protection the law gives non-human animals in general.

Moreover, a different analogy appeared to play a larger role for the Justices. Several of the opinions, including the plurality opinion of Chief Justice Roberts, pointed out that pancuronium bromide is routinely used by physicians in assisting patients to hasten their deaths in the Netherlands, where physician-assisted suicide is lawful. Citing a 1994 Royal Dutch Study, Justice Breyer asked rhetorically, "why, . . . if the use of pancuronium bromide is undesirable, would those in the Netherlands, interested in practices designed to bring about a humane death, recommend the use of that, or similar, drugs?"

Justice Breyer thought that the Dutch recommendation undermined the claim that the use of pancuronium bromide is inherently improper, no matter how it is administered. But that was not the petitioners' claim, and the contrast between the use of pancuronium bromide in the Netherlands and in the United States (including Kentucky) shows why the Dutch evidence should have strengthened rather than weakened their case.

In the Netherlands, pancuronium bromide is administered as the second drug in a two-drug protocol, after an attending physician has verified that the patient is completely unconscious. The pancuronium bromide (or other muscle relaxant) is then used to stop the patient from breathing. In other words, in the Netherlands, pancuronium bromide is the lethal agent.

By contrast, in the American three-drug protocol, pancuronium bromide is administered without monitoring the prisoner to ensure complete unconsciousness. Although the pancuronium bromide may hasten the prisoner's death by suppressing respiration, that is not its primary purpose, and if it suppresses respiration for a conscious prisoner, then his death will be extremely painful, as he experiences suffocation from the pancuronium bromide, as well as cardiac arrest from the third drug, the intended lethal agent.

The Aesthetics of Executions

Thus, whatever the goals of those who adopted the three-drug protocol in the first place, in the United States, the main point of continued inclusion of pancuronium bromide in the lethal injection protocol appears to be merely aesthetic. Were it not for the paralyzing effect of pancuronium bromide, then the body of an unconscious prisoner killed by potassium chloride-induced cardiac arrest might convulse in a manner that would be disturbing to witnesses. As Chief Justice Roberts wrote in his plurality opinion, the state "has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress."

What could the Chief Justice mean by the "dignity of the procedure"? He might mean the dignity of the condemned prisoner. But, as Justice Stevens explains in his opinion, "whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect."

It is hard to imagine that a prisoner would choose to accept the latter risk in order to further the dignitary interest identified by the Chief Justice. And, of course, no prisoner is actually given a choice whether pancuronium bromide should be included in his execution protocol. Accordingly, the inclusion of the pancuronium bromide in the three-drug protocol is not for the benefit of the prisoner, but for the aesthetic sensibilities of the public.

The Triumph of Aesthetics

In this regard, the decision in Baze bears an uncomfortable resemblance to the Court's ruling last year in Gonzales v. Carhart. In that case, the Court upheld the federal Partial Birth Abortion Ban Act--which forbids a particular method of abortion in which a fetus is partially delivered into the birth canal before being killed. The basis for the ban was not that this abortion method was especially unsafe for the woman; on the contrary, there was evidence that in certain circumstances it is the safest abortion method.

Nor was the ban supported by an interest in preventing fetal suffering or death. Although the Act described the banned abortion method as "brutal and inhumane," both the Act and the Court permitted other methods of abortion that are, from the perspective of the fetus, essentially indistinguishable. For instance, the standard alternative to the banned method involves dismemberment of the fetus inside the womb.

At bottom, the primary interest served by the Partial Birth Abortion Ban Act was, in the words of Justice Kennedy for the Court, "respect for the dignity of human life." The Court in Gonzales v. Carhart validated the federal government's aesthetic interest in dignity, at the potential expense of women's health, just as, in Baze, it validated Kentucky's aesthetic interest in the dignity of an execution at the potential cost of suffering by the prisoner.

Aesthetic interests in dignity are not entirely trivial. Government may legitimately further dignitary interests through a variety of means. However, until recently, one would not have expected such interests ever to trump constitutional rights to such basic goods as health and the avoidance of excruciating pain.

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Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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