Jackson Free Press

"I think I will go out and beat an old lady to death tonight. I don't have anything to worry about if I get caught. I won't even have to worry about being stuck with a needle because it might hurt too much."
—Letter to The Clarion-Ledger

We obviously struck a nerve. I have never seen such venomous responses to a court case as I read in The Clarion-Ledger's "Letters to the Editor" after the U.S. Supreme Court granted a stay of execution to Earl Berry on Oct. 30, 2007. They granted the stay to examine Mississippi's protocol for lethal injection; the Court was reviewing a similar case, Baze v. Rees, from Kentucky. The writers were uniformly incensed that the Court—or anyone—would care about the level of pain during an execution.

One wrote, "Our president made a big mistake in not going to Iraq during the war and bringing Saddam Hussein and his two sons to America and giving his sons full authority over our prison systems." Another opined, "We should put some weights on him (Berry) and shove him overboard in the Arctic." A third said, "Berry and other murderers should be chopped to pieces and flushed down the toilet where they belong."

There were more, including one with a bizarre reference to my mother.

What released this flood of ill will? The notion that lethal injection might be cruel seems counterintuitive. Oklahoma was the first to use lethal injections in 1977, as other execution methods (hanging, electrocution, gas) were held out as state-sponsored torture, not fit for a civilized society. Texas followed suit in 1982, as did most of the other states.

The notion was simple: Kill the condemned like vets euthanize animals.

But in practice, the "three-drug cocktail" instituted by Oklahoma and adopted by Mississippi and other states is far different than putting your pet "to sleep."

Thiopental is a short-acting barbiturate that temporarily renders a patient unconscious. In surgery, anesthesiologists use additional procedures and drugs to produce a "surgical depth" of anesthesia that prevent the unconscious patient from feeling pain.

Pancuronium bromide paralyzes all voluntary muscles, but does not reduce consciousness or the feeling of pain. Because it paralyzes the diaphragm, a conscious person given this drug chemically suffocates. The Tennessee medical examiner admits: "A conscious person who is paralyzed would be unable to breathe. And suffocating to death would be a most violent form of death."

Finally, potassium chloride induces cardiac arrest, which kills the prisoner. It causes the sensation that one's veins are on fire, before forcing a heart attack. The state expert in Baze said, "A conscious person given potassium in the concentration level Kentucky uses would be screaming in agony."

Veterinarians, by contrast, use Phenobarbital for euthanasia, sometimes aided by another drug that painlessly stops the heart. The American Veterinary Association holds that it is "unacceptable and condemned" to use potassium chloride in euthanasia unless the animal is "in a surgical plane of anesthesia, a level of anesthesia deep enough to ensure that the surgical patient feels no pain and is unconscious for the duration of the procedure." Neither the Kentucky nor the Mississippi protocols for execution require any means of determining if the prisoner has been anesthetized to this level, nor do they require training executioners to monitor the prisoner's consciousness.

Execution by the three-drug protocol can become torture when: (1) The connection with the vein is bad, injecting less anesthetic; (2) an executioner gives incorrect drug dosage or mixture; (3) unlike surgery, executioners don't monitor the prisoner's consciousness during an execution; and (4) the paralyzed prisoner, unlike the patient, can't signal that he's still conscious.

Why has it taken so long to challenge this practice? Until now, the protocol and personnel for lethal injection have been vague. Because the prisoner is paralyzed, he is unable to communicate that he is in excruciating pain. On rare occasions, the curtain has lifted, and only then do we see the reality of lethal injection. This happened with the executions of Joseph Clark of Ohio in May 2006 and Angel Diaz in Florida in December 2006. In Ohio, 20 minutes after his execution began, Clark lifted his head and repeatedly stated, "It don't work." During the next 90 minutes, Clark's moans and cries were audible; but the execution went forward.

Diaz's death was even more horrific. Observers saw that the executioners didn't find Diaz's vein, and he convulsed through the entire execution. Diaz's autopsy noted foot-long chemical burns in his arms, and concluded that he was suffocated while still conscious. The brutality compelled Florida Gov. Jeb Bush to order an investigation.

These cases are just the tip of the iceberg. Now, post-execution autopsies are gradually surfacing in litigation. Anesthesiologists report that the autopsies show conscious asphyxiation, internal burning and conscious cardiac arrest in prisoners who were paralyzed and thus unable to protest. It is a method of execution worthy of Poe or Orwell.

The Supreme Court took on the Baze case to decide whether the Kentucky protocol "creates an unnecessary risk of pain and suffering," and, if so, whether this would be a "cruel and unusual punishment" forbidden by the Eighth Amendment. Other counsel and I filed the same kind of lawsuit in Mississippi to stop the use of the "three-drug cocktail." That lawsuit caused the Court to halt Berry's Oct. 30 execution.

On Jan. 7, the Court heard argument in Baze. The state admitted that if executioners did not properly administer the drugs, they would inflict excruciating pain may be inflicted. Also, the state agreed that if that risk occurred in every case, Kentucky's lethal injection method would violate the Constitution. Kentucky's lawyer further conceded there was no need to paralyze prisoners to execute them, but that it was just for the sake of "appearances."

Both sides also agreed that a rapid dose of three to five grams of just the first drug (the barbiturate used in animal euthanasia) would cause death without suffocation or excruciating pain.

Justice Antonin Scalia, in his usual barbed manner, asked the prisoner's lawyer, "This is an execution, not surgery. … Where does that come from, that you must find the method of execution that causes the least pain? … Is that somewhere in our Constitution?"

The lawyer answered: "Justice Scalia, our position is that the pain that is inflicted here when this goes wrong is torturous, excruciating pain under any definition. We're not talking about a slight incremental difference. We're talking about the infliction of torturous pain."

A decision in Baze is expected by late June, and will likely be applicable to Mississippi. But the question is, does it matter? Do we care whether executions are painful? Do we want a justice system of which Saddam Hussein would be proud? In the final analysis, the issue of execution by torture is not about "them," the prisoners; it is about "us."

Jim Craig is a partner in the law firm of Phelps Dunbar LLP, is co-counsel in Walker v. Epps, the lawsuit that challenges the Mississippi lethal injection procedure. He is also a member of Mississippians Educating for Smart Justice (MESJ).

Previous Commentsshow

Thank you for the explanaton, Mr. Craig. I didn't know that one of the drugs used caused paralysis. I hate to imagine not being able to say that you are still awake when they inject the cardiac arrest drug. I've heard stories of people who were still awake on the operating table and couldn't tell the surgeon, so they were aware of everything.

LatashaWillis

Feb 14 2008

The Florida execution of Angel Nieves Diaz--which one physician described as death by torture--helped to inspire the recent batch of lethal injection stories. It's horrific stuff. The next state to abolish the death penalty should be Florida, I swear. They had the most botched electric chair executions--from faulty equipment and improperly trained personnel--and now the same thing is happening over there with lethal injection. Totally agree with Craig here, by the way. Single-drug euthanasia, like we used in a veterinary context, is really the closest thing there is to a humane form of legal homicide.

Tom Head

Feb 14 2008

"lethal injection stories" --> "lethal injection rulings," I should say.

Tom Head

Feb 14 2008

"Do we care whether executions are painful?" NO

BubbaT

Feb 15 2008

bubba...are you a proud american...do you believe in everything that this country stands for...im just saying free from cruel and unusual punishment...does that mean anything to you

skipp

Feb 15 2008

LOL What does being a proud American have to do with not caring if it hurts a rapist,murder,etc hurts when they are executecd? When I think of cruel and unusual punishments it woud be more like dismemberment, drawing and quartering, impalement..etc not lethal injection. Which was probably what they were thinking when they wrote the Constitution. Did the murders, rapist, etc take the time to make sure they did not cause any pain and suffering to their victims?

BubbaT

Feb 15 2008

Right, and then when the Innocence Project found that the D.A. hid evidence that would have cleared the person, we can just put his whole body back together again. Kinda like Humpty Dumpty. With due respect, Bubba, you're earning your user name.

DonnaLadd

Feb 15 2008

The D.A. that hide evidence needs to be in jail with the rest of the crooks. I said I didn't care if it hurt them, not that they didn't need to make damn sure they are guilty before they carried out the sentence. DNA testing needs to be mandatory in all case that can have the death penalty, everything needs to be examined to the extreme. When there is no doubt they are guilty then its time to carry out the death sentence. Donna, Bubba is my name not just my user name. :)

BubbaT

Feb 15 2008

Then, obviously, you would support a moratorium on killing anyone on death row in the state until we've taken the time to clean up the system then? Before you slice and dice them. Of course, that should be televised, as all executions should be, and I'm not kidding about that.

DonnaLadd

Feb 15 2008

Sure I would. The system needs to be improved for sure, no innocence person needs to be in jail.

BubbaT

Feb 15 2008

Then that tells me that we should be forming an alliance, both of death penalty supporters and opponents, to declare a moratorium on executions in the state until the entire system can be cleaned up. That, obviously, will take years—but during that time, we could have the public conversation about whether to execute or not, and how. But first things first. No one should be executed in Mississippi, with the various corruptions that are being exposed in the system. And every single autopsy clearly needs to be investigated. Moratorium NOW.

DonnaLadd

Feb 15 2008

Then that tells me that we should be forming an alliance, both of death penalty supporters and opponents, to declare a moratorium on executions in the state until the entire system can be cleaned up. Hear, hear!! The release of Kennedy Brewer today as an innocent man, when, if things had gone "according to plan," he would have been EXECUTED -- shows that a moratorium is needed here.

GenShermansGhost

Feb 15 2008

When I think of cruel and unusual punishments it woud be more like dismemberment, drawing and quartering, impalement..etc not lethal injection. Which was probably what they were thinking when they wrote the Constitution. The term "cruel and unusual" is a relative term. Seems to me the folks that wrote the Constitution anticipated that it was going to be applied by every generation according to what was "unusual" for THAT generation. If they wanted to ban "dismemberment, drawing and quartering," etc, they could have said so.

GenShermansGhost

Feb 15 2008

The year after the Bill of Rights was proposed, Congress passed the Crimes Act of 1790. This bill called for, among other things, execution of traitors (by hanging)--followed by mutilation of the corpse. No joke. So I would certainly agree that if we're going to use a "framers' intent" standard of interpreting the law, it would certainly allow for lethal injection. But if we look at the words themselves--which is what I think we're obligated to do--then obviously cruel and unusual punishment changes with what one former justice described as our "evolving standards of decency." Which is to say: We have a penitentiary system now (which didn't exist until the 1830s). We have a probation system now (which didn't exist on any large scale until the turn of the 20th century). We have a better understanding of human psychology, and criminology, now. And by all of these new standards, unnecessarily painful execution unquestionably violates the "cruel and unusual" language. As for whether execution in general does: I don't think our society has evolved to the point where execution in general is considered cruel and unusual by most, but I'd like to live long enough to see the day when it is.

Tom Head

Feb 15 2008