While there is nothing funny about lethal injection, the dishonesty pervading the debate about it is just this side of hilarious. Both sides engage in the kind of deception usually reserved for conversations with future in-laws, or the sale of used car parts. On one side, you have death-penalty opponents earnestly insisting they aren't against capital punishment; they just want the procedure to be closer to what you might expect if you went in, say, for a nose job. On the other side, you have states like Kentucky solemnly intoning that their lethal injection procedure is a model of up-to-the-moment medical technology, rather than a bad system conjured up on the fly by Oklahoma's medical examiner in 1977, then copied by the various states in a nationwide cut-and-paste extravaganza.
Were we honest about it, we'd all agree that no one really wants more-tender executions. Death-penalty opponents see this as a step toward a permanent ban on capital punishment. And the 38 states that allow capital punishment have largely sloughed off the unseemly administration of executions to prison staff, who have been bungling and hiding it for decades. That's why using the fight over lethal injection as a proxy for the real fight over the death penalty is doomed from the start. No healthy relationship can be based on such ridiculous fibs.
Representing two Kentucky inmates who are challenging the state's lethal injection protocol is Donald B. Verrilli Jr. of Washington, D.C.'s Jenner & Block.Verrilli goes in knowing that at least four justices voted to hear this case after the Kentucky Supreme Court found in 2006 that the state's lethal injection protocol did not violate the Eighth Amendment. Four members of the court may have thought at the time that this was the case that would trigger the big national moment of reckoning about capital punishment. By midmorning, it's evident somebody miscalculated.
The lethal injection protocol in Kentucky, says Verrilli, creates a serious danger of cruel and inhumane pain. (Listen here.) That's because the first drug in the three-drug cocktail (the barbiturate sodium thiopental), if administered incorrectly, can cause the second drug (the paralytic pancuronium bromide) to mask the effect of the third drug (potassium chloride, which stops the heart), thus causing "excruciating pain as it burns through the veins." Chief Justice John Roberts stops Verrilli to ask whether that problem is solved if the first drug is administered properly. Justice Anthony Kennedy, subdued this morning, adds: "If it's properly administered, would you even have a case?"
Verrilli concedes that if the first drug always worked, there would be no significant risk of a painful death, but he contends there's no way to guarantee that without better monitoring. He starts to detail the need for medical personnel at executions, but Justice Antonin Scalia points out that the American Medical Association has ethical rules barring doctors and nurses from participating in them. When Verrilli goes on to suggest that in light of this, a single massive dose of barbiturates would be preferable to the three-drug cocktail, Justice Samuel Alito points out that this fix was never raised in the Kentucky courts and shouldn't be litigated now on appeal. Surprisingly, Justice Stephen Breyer joins this pile-up. "You say this is less painful than some other method, but which method?" he asks. "What else should I read?" He cites a study from the Netherlands questioning the efficacy of the single killing dose of a barbiturate.
The chief justice asks whether the single-dose-barbiturate method has even been tried on humans, then goes on to voice the real, underlying complaint of the court's conservatives: "What if you prevail?" he asks. "Will your next challenge be to the single-drug protocol?" With the removal of the paralyzing agent from the protocol, he suggests, petitioners will next complain that their executions are now "undignified and lingering."
Justice Ruth Bader Ginsburg, like Breyer a reliably rather liberal member of the court, seems focused on a very narrow aspect of the Kentucky protocol: She goes back to the missing medical personnel, because she doesn't like that these folks insert the IV line, then leave the room so prison staff can administer the drugs. Verrilli tries to tick off other forms of monitoring that might better reveal whether a patient had been properly anesthetized—including EKG and blood pressure cuffs—at which point Justice Antonin Scalia's own blood pressure visibly shoots into the red zone: "This is an execution, not a surgery!" he splutters. "The other side says that to know whether the person is unconscious or not, all it takes is a slap in the face and shaking!" Who needs a blood pressure cuff when the back of the prison staffer's hand can do the trick?
"Where is it written that the state must choose the least painful method?" Scalia mutters. "Is that somewhere in the Constitution?" Scalia, like Roberts, is mad because he sees this case for the Trojan Horse that it is. He's not going to agree to "send this case back to the trial court," he warns, while the country experiences (shudder) "a national cessation of executions." That could go on for years.
There hasn't been an execution in this country since Sept. 25—the day the court agreed to hear this case. Death-penalty opponents have hoped this "de facto moratorium" might stick. But Scalia wants you to know that the machinery of death—to use Justice Harry Blackmun's old phrase—is merely on pause. Scalia and Verrilli conclude by engaging in a very lengthy, very terse colloquy over whether the correct legal test for Eighth Amendment purposes is "unnecessary pain," "unnecessary and wanton pain," "intentional pain," or "unusual pain." Trying to sort out what's law and what is mere dicta quickly becomes, er, unusually painful.
Roy T. Englert Jr., of Washington's Robbins, Russell, Englert, Orseck, Untereiner and Saubert, represents the Kentucky Department of Corrections, and he goes with a just-the-facts-ma'am presentation that abruptly deflates this case to its proper size. Asked by Justice John Paul Stevens whether an incorrect administration of the first drug in the cocktail might lead to excruciating pain, he replies, matter-of-factly, "Yes." Asked whether that would violate the Eighth Amendment if it happened in every case, he repeats, "Yes." But, he contends, Kentucky has excellent safeguards. The IV line is injected by a phlebotomist who "places 30 needles a day in the prison population." When Souter objects that this should be done by a doctor, Englert replies that even in hospitals doctors don't insert IVs. "That's derisively referred to as scut work," he observes. He reminds the court that although the state of Kentucky has performed only one execution by lethal injection, the staff has had "100 practice sessions." Unclear if that includes the optional extra credit courses in slapping and shaking.