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.