Ty Alper is the Associate Director of the Death Penalty Clinic at the University of California, Berkeley, School of Law. The Clinic runs the website www.lethalinjection.org. There’s just nothing funny about the topic of his post, so I’ll spare you the usual nonsense. That said, thanks very much to Ty.
On this day, thirty-one years ago, Gary Gilmore was shot to death by five Utah prison guards. It was the first execution of the “modern era” of American capital punishment, and it was followed by 1098 more executions over the next three decades. Only one other person has been executed by firing squad during that time; the vast majority – 929 – have died by lethal injection.
The anniversary of Gilmore’s execution falls during a period, likely a brief one, when executions have been halted in this country while the Supreme Court, in a case called Baze v. Rees, examines lethal injection. You can find here everything you ever wanted to know (and more) about challenges to lethal injection generally, and the Baze case in particular. In short, the Court is considering a challenge to the administration of lethal injection in Kentucky, and may answer only a relatively narrow constitutional question posed by the case, namely, by what standard under the Eighth Amendment should challenges to lethal injection be judged? No matter what the Court’s answer, executions may very well resume with frightening speed in states, such as Texas, that are not used to having their death machinery sit idle.
If executions do resume, and the courts do not force states to reconsider the three-drug protocol that they all employ, inmates will continue to be paralyzed before they are killed. (The first drug in the protocol is supposed to anesthetize, the second one paralyzes, and the third one kills.) Many people do not know about this aspect of lethal injection. They hear witnesses describe lethal injection as “peaceful,” but don’t realize that such executions have literally been staged to look that way. In fact, the relevance of any witness account to a “peaceful” lethal injection is minimal when you consider that the person being executed has been rendered unable to move a muscle throughout the execution. And, as we now know, there is ample evidence that the prison officials injecting the first drug, the one that is supposed to anesthetize the inmate, are, in many states, utterly unqualified for the task. In California, for example, we’ve had 11 lethal injection executions, and records indicate that, in as many as six of them, the person being executed may have been conscious when prison officials administered the third drug – the one everyone acknowledges causes excruciating pain.
What must that feel like, to be paralyzed yet awake, unable to even blink an eye, as potassium chloride burns like fire through your veins? We obviously can’t ask anyone who’s been executed. But we can ask people who have had similar experiences during surgery. People like Kelly Haapala, whose anesthesia wore off during her hip replacement surgery. She was awake during the surgery, but unable to cry out to let the surgeons know that the anesthesia had failed. She’s described the experience as “the worst terror that I’ve ever experienced.” Or Diana Todd, who was fully awake, but paralyzed, during her hysterectomy: “This was the most traumatizing experience of my life. It takes away your basic humanity. That kind of terror is cruel beyond description. There is simply no way to adequately describe what it is like to have every single scrap of your own self control stripped away. You can’t even scream to relieve the pressure.”
In these cases of what is called “anesthesia awareness,” the paralyzing agent had a surgical purpose (to prevent muscle movements that would interfere with the surgery). The answer, advocates say, is better monitoring of anesthetic depth during surgery. But there’s an even easier answer in the lethal injection context: stop using the paralyzing drug altogether. After all, veterinarians refuse to use it when euthanizing animals (and veterinary laws in dozens of states expressly prohibit it) because of the concern that the animal will not be able to indicate if the anesthetic has been improperly administered.
The only purpose the paralyzing drug serves in the execution context is to create the appearance that the execution is peaceful, or “dignified,” as the lawyer for the State of Kentucky put it during oral argument in the Baze case. And yet States stubbornly refuse to reconsider its use, even in the face of compelling evidence that executions that appear “peaceful” may in fact be unspeakably cruel. In light of that evidence, it’s hard to buy the “dignity” argument, and it does not take great reserves of cynicism to conclude that the States’ top priority is simply keeping up appearances. Indeed, the reason that the firing squad used to execute Gilmore fell out of favor probably had much to do with the public’s ability to see for itself any pain and suffering caused by executioner errors or the method itself. No such transparency attends the current method of lethal injection.
In the thirty-one years since Gary Gilmore was executed, there’s been plenty to excoriate about the administration of the death penalty in this country. And those of us who are opposed to the death penalty struggle sometimes to admit that there is a way to make executions humane. But there is. And the States refuse to do it. There’s nothing dignified about that.
Update: Thanks for the comments. Particularly because this is a blog run by history professors, I was remiss in not linking to the brief filed in the Baze case that discusses the history of the three-drug lethal injection protocol, including the role of Dr. Chapman, which Michael mentioned. You can read that brief here.