The Supremes: lethal-injection protocol

The US Supreme Court heard arguments, yesterday, on a death penalty issue: whether the lethal-injection protocol that’s the official method of execution in almost all states that have the death penalty... is humane, or whether errors in its use can make it so painful as to be unconstitutional.

The case does not bring up the general issue of capital punishment, of which more here later, but only addresses the protocol used. And those challenging the three-drug protocol are offering, to show that they’re not just anti-death-penalty activists, a one-drug alternative: a fatally high dose of a barbiturate. So let’s look, for a moment, about why there’s any question here — after all, if switching to a mega-dose of a sleep drug would satisfy everyone, why does the Supreme Court have to get involved?

The three-drug system has these effects:

1. Put the victim to sleep, anesthetizing him.
2. Paralyze him, which also stops his breathing.
3. Stop his heart.

It seems straightforward. The trouble is that if the first effect isn’t sufficient, the rest is pretty awful and painful. So why do it this way?

The paralysis serves to avoid any convulsions, twitches, or other unpleasant motions that might make spectators think that something bad is happening. Even if the prisoner is dying peacefully, such movements will disconcert those who have to — or choose to — watch.

The third step causes “official” death quickly. One of the criticisms of the single-drug alternative is that it can take up to half an hour for the prisoner to die that way.

The thing is, in that case the prisoner is asleep, and dies painlessly in his sleep. What bothers us with all this, what brings us to add the second and third drugs, is that we want to think that it’s all quick and easy and neat. No jerky motions that would be unsettling. No time spent watching a sleeping man die, and contemplating what we’re doing.

We want the modern equivalent of the ideal beheading, where we imagine that it’s so quick that the beheaded doesn’t know what hit him.

The reality is that he does know, and we know, and we can’t really dress it up and make it as neat as we’d like. As long as we persist in this, we should switch to the barbiturate-only protocol. And if it unsettles us to think that the prisoner isn’t just dying in a wink, we should think about why we’re naturally bothered by that.

Our societal morality tells us not to kill people, and, for most of us, the idea of doing that is repugnant. Yet we make exceptions. Some are willing to kill “enemies”, saying that, well, war is an unpleasant necessity. Some will abort a developing fetus, while others consider that to be killing a human. We draw our lines in different places.

But I think we all agree that killing someone for a crime he didn’t commit... is horridly wrong.

Yet we mistake accusation for conviction, and conviction for certainty. We become sufficiently convinced that an accused murderer is guilty that we call for his death even before the trial. When a jury hands down a “guilty” verdict, we forget about the times we saw jury verdicts with which we disagreed, and we cry for blood. When George Bush governed Texas, executing more than 130 convicts during his five-year reign, he avowed that every one of those men was guilty of his crime and deserved to die, and he worked to reduce the appeals and speed the executions.

And yet, look at what’s happened since Bush left Texas. DNA tests have exonerated 15 convicts, with half again that many pending analysis, just in one county alone. Given those sorts of results, how can anyone have the arrogance to claim that our system “works”? How can anyone claim that we’re certain, and that we don’t execute innocent people? It’s clear that that can’t be true.

Yet we persist. The Supreme Court has agreed to consider a case that seeks to execute a man for raping a child (murder has been the only cause for executions in the last 40 years). Again, we call for blood; if the crime is sufficiently heinous, we forget the problems and just seek vengeance.

I actually think we should treat rape — of anyone — as severely as we treat murder, and that the penalties should be comparable. But when we, acting with authority, kill a criminal, we put ourselves in the criminal’s place. We brutalize ourselves in the process. And we can’t be sure we got it right. How many executions of innocent people are acceptable, in order to mete out justice to those who are truly guilty?

None.

We should certainly look at our lethal-injection protocol. But we should go further, and do what every other modern nation has done: eliminate capital punishment completely.