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The Guardian/UK

Cruel Intentions

The US supreme court is examing the legality of death by lethal injection. But that doesn't mean America has come to its senses about capital punishment.

Tim Watkin

This week the US supreme court began lifting what's been called "the chemical veil" that has covered the ugly face of capital punishment in this country. It seems the country's ultimate justices are about to have a long, hard look at just how executions are practiced in the US.

Christopher Emmett remains alive in his Virginia cell because on Wednesday the court stepped in to halt proceedings just four hours before he was due to be executed. Emmett, 36, beat a co-worker to death with a brass lamp in 2001. On Thursday, the Georgia supreme court took the cue from their federal superiors and blocked the execution this week of Jack Alderman.

"I think this is a de facto moratorium," Douglas Berman, a sentencing expert at Ohio State University, told the Washington Post. "You'll see that very few states want to be outliers when the court seems ready to step in and stop" the planned executions.

The moratorium is taking hold because the supreme court announced last month it would finally wrestle with the issue of death by lethal injection, by hearing an appeal on a Kentucky murder case. That hearing will consider whether lethal injections amount to "cruel and unusual punishment" - something banned by the US constitution - but won't begin until next year. In the meantime courts and governors around the country are reluctant to push ahead with their execution programmes. For once, justice delayed is justice applied.

Evidence of just how horrible death by lethal injection can be has been mounting for some years now. It's long past time the court investigated. Of the 38 states that carry the death penalty, 37 use a lethal injection made up of three drugs. It was supposed to be a humane replacement for electrocution. Florida switched from electricity to drugs, for example, after the 1997 electrocution of Pedro Medina, when flames shot from the dying man's skull and the smell of burning flesh filled the witness chamber.

But lethal injections have been far from a raging success. In December last year, federal judge Jeremy Fogel in California ruled that that state's execution methods did indeed amount to "cruel and unusual punishment". In at least six of the state's 13 executions by lethal injection, he found, inmates may have been conscious, and so in agony, when injected with the heart-stopping drugs.

Dr Mark Heath, an anesthesiologist and researcher at Columbia University who reviewed California's execution logs and did "many hundreds of hours of research" into the state's execution methods, has concluded: "It is my opinion to a reasonable degree of medical certainty that the lethal injection procedures selected for use in California and used elsewhere subject the prisoner to an increased and unnecessary risk of experiencing excruciating pain in the course of execution."

The three-drug cocktail contains an anesthetic, a paralyzing drug and a killing drug. The main criticism is that sometimes the anesthetic, sodium thiopental, doesn't work, and the inmate experiences an excruciatingly painful death as the killing drug, potassium chloride, burns up the veins on its way to stopping the heart.

Heath declared: "My research into executions by lethal injection strongly indicates that executions have occurred where the full dose of sodium thiopental was not fully and properly administered. If an inmate does not receive the full dose of sodium thiopental because of errors or problems in administering the drug, the inmate might not be rendered unconscious and unable to feel pain, or alternatively might, because of the short-acting nature of sodium thiopental, regain consciousness during the execution".

The paralyzing drug, pancuronium bromide, however, freezes the inmates' muscles and facial expressions, making it impossible for them to show their agony. Hence the term, coined by Dr Heath, of the "chemical veil" that hides just how horrendous death by lethal injection can be.

The kicker of his testimony comes near the end: "All of these problems could easily be addressed, and indeed have been addressed for the euthanasia of dogs and cats."

But if you read these stories with a glimmer of hope that America, or at least the supreme court, has come to its senses and accepted the thorough, logical, duplicated studies conducted worldwide that for years have shown that capital punishment does not deter, is prohibitively expensive and more than occasionally kills the innocent, then think again. You might as well believe they teach evolution in the heart of Kansas.

The number of people executed in the US this year is likely to stay below 50 for the first time since 1996, but there's no reason to think that won't shoot back up whenever the court finally rules. Even if this formula of drugs is banned, there are others.

Justice Antonin Scalia dissented from the Emmett decision, saying appeal courts might mistakenly assume that the decision to hear the Kentucky case amounted to a supreme court-imposed stay. Kent Scheidegger, legal director for the pro-death penalty Criminal Justice Legal Foundation immediately fretted that any moratorium, de facto or otherwise, would dilute deterrence and "cause more innocent people to die".

It is, of course, beyond the realm of ridiculous to think that criminals who have until now been reining in their murderous impulses, will have read the court's ruling and, with a sigh of relief, decided they can now go on killing sprees. You can almost hear them: "Phew, now it's only life imprisonment. Where are our guns?"

This idiotic line of thought is a glimpse of just how irrationally wed Americans still are to the death penalty. Even here on America's "left coast", just over the Golden Gate Bridge from San Francisco at the infamous San Quentin prison, state lawmakers are planning a new $330m death row. There are already 622 inmates waiting for their lethal injection at San Quentin, but the new facility allows for growth, with plans for 768 cells.

For all the debate and opposition, there seems little likelihood of change. It's hardly at the top of the agenda for the presidential candidates. Heck, it's hardly on the agenda at all.

Still, I've never understood why the US, and the American right in particular, is so enamoured of the death penalty. The country will fall back on liberty as its core business, its unswerving goal, then decide that not even throwing away the key is sufficient punishment for murderers. The religious right will preach repentance, then whip out the syringe whether the inmate has made his peace with God, or not. The economic right will rail against government stepping into an individual's life to raise taxes, but it will support a government that steps in to take that individual's life.

As I say, there's no reason to believe change is in the air. But surely, surely, all these inconsistencies must one day unravel. Don't expect it soon, but as the brutality of lethal injection is revealed, and that execution method becomes as repellent as beheading or hanging, there must come a time when Americans realize there is no good, clean way to kill your fellow citizens.

Tim Watkin is a former deputy editor of the New Zealand Listener magazine, now freelancing and studying in San Francisco. He was named NZ print journalist of the year in 2005.

© 2007 The Guardian

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