Lethal Injection Revisited

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Lethal Injection Revisited

Hanging was the worst use a man could be put to.
- Sir Henry Wotton, The Disparity Between Buckingham and Essex (1651)

It is so easy to view the death penalty as nothing more than a means to an end that we sometimes overlook the fact that it should not be an unpleasant experience for the person involved. Thanks to Romell Broom we have been reminded of its niceties and the importance of administering it humanely. Not, however, that everyone agrees that it needs to be a pleasant experience. Indeed, in the death penalty's most recent experience in the United States Supreme Court it was met with a somewhat callous approach by a majority of the members of the Court.

The case involved death by lethal injection and whether, as presently administered, it constitutes cruel and unusual punishment thus violating the prospective decedent's rights. The issue was not complex and has been examined here and elsewhere over the years. At issue is the second drug that is administered in the three-drug cocktail that dispatches the participant. It is pancuronium bromide and it paralyzes the skeletal muscles but not the brain or nerves of the chemical's recipient. Unable to move or speak, the participant cannot let onlookers know that contrary to appearances, what the participant is undergoing is extremely painful. In Tennessee its use is prohibited when euthanizing non-livestock animals because, as the American Veterinary Medical Association said in a 2000 report, "the animal may perceive pain and distress after it is immobilized." The Court, and others are not troubled by this. Their position was neatly articulated in 2006 by New York Times reporter Denise Grady. In a column addressing the use of lethal injection she observes: "At the core of the issue is a debate about which matters more, the comfort of prisoners or that of the people who watch them die. A major obstacle to change is that alternative methods of lethal injection, though they might be easier on convicts, would almost certainly be harder on witnesses and executioners. With a different approach, death would take longer and might involve jerking movements that the prisoner would not feel but that would be unpleasant for others to watch."

When considering Base et al vs. Rees, a Kentucky case involving the three drug cocktail, Chief Justice John Roberts observed that: "Some risk of pain is inherent in any method of execution . . . . It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions. Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm' that qualifies as cruel and unusual." Justice Antonin Scalia, ever compassionate, observed during oral argument: "This is an execution, not surgery. . .. Where does that come from, that you must find the method of execution that causes the least pain?" In a 7-2 decision the court upheld the use of all three drugs in lethal injections. And now an up-date, courtesy of Mr. Broom.

Mr. Broom was convicted of the 1984 of the rape and killing of a 14-year old girl abducted in Cleveland. He was convicted and sentenced to death, his execution to take place on September 15 2009. The attempted execution began at 2:01 PM with executioners searching in vain for the vein that would serve as a conduit for the magic liquor that would extinguish his life. Mr. Broom was cooperative and did everything he could to help including flexing his fingers and guiding the tube up his arm, all to no avail. After two hours the execution was called off. Shortly thereafter the governor of Ohio granted Mr. Broom a one-week reprieve, a reprieve that was followed by subsequent stays of execution.

In addition to giving Mr. Broom additional time to contemplate the error of his ways, the stays provide his attorneys the opportunity to attempt to halt all further attempts at execution. A report in the New York Times says his attorneys will argue that (a) he needs more than 7 days to recover from the physical and emotional trauma of the executioners' failed attempt (a recovery that some might think would actually be helped by a successful subsequent and prompt execution), (b) that Ohio's lethal injection system is critically flawed, and (c) that lethal injection is cruel and unusual punishment. (The Supreme Court decision in the Brees case may dispatch two of those arguments more swiftly than Mr. Broom will be dispatched.) As a result, Mr. Broom, who had no right to expect to see another day, may live to see another day in court.

The foregoing proves that although we are the only Western nation that believes the death penalty is the best cure for recidivism, we are also a compassionate people and want to make sure that recipients of its benefits are given every possible consideration before receiving them.

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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