Osler's Razor

[Note: This photo actually shows the Canadian Supreme Court, raising the question-- why can't our Supreme Court wear cool outfits like that?]

I think and write about the Death Penalty quite a bit. I have always found the Furman opinions especially fascinating, as the addressed the compelling issues in American law in the course of temporarily outlawing capital punishment from 1972-1976. I did not imagine, though, that another moratorium would occur in the near future, but now that day has come.

It appears that in granting a stay of execution in a Mississippi case, the Supreme Court is effectively halting the death penalty in the US. The reason is not (like Furman) deep questions regarding racism, equality, and the national conscience, but rather whether or not the method of lethal injection used by almost every state may cause undue pain rising to the level of cruelty. This is of special interest to me since I wrote about it in the book I just finished-- the chemical process which lethal injection uses (anesthesia, binding agent, killing agent) replicates the mechanical process used with the cross (anesthesia in the form of wine and myrrh, binding on the cross, death by gravity). I'm surprised that this has been the cause of an effective moratorium, but not by the complexity of the issue. Here is a short excerpt from the book:

Lethal injection, in fact, is a fairly recent phenomena coming at the tail end of decades spent seeking an acceptable manner of execution. If nothing else, the experience of execution in the United States has repeatedly proven that there is no easy way to kill a person. The human body, it seems, resists death by hanging, electrocution, gas, and chemical injection, leaving no clean and tidy options for the executioner.

In the early years of the republic, hanging was the preferred method of killing prisoners. However, this was often problematic. New York State suffered a series of botched hanging in the early 1800’s, and the mistakes were made in full view of the several thousand people who attended these spectacles. Finally, in 1885, the governor of New York commissioned a committee to study alternatives to hanging. After a lengthy period of study, it was this committee which recommended the first use of an electric chair, and New York strove for reform by changing to that method.

Electrocution, though, did not prove to be much of an improvement. New York first used its new electric chair on a murderer named William Kemmler. Rather than being neatly dispatched, however, Kemmler did not die quickly, and slowly expired amidst the smell of burning flesh and ashes. For over a hundred years, the electric chair was used with varying results. In 1999, Allen Lee Davis was executed by electrocution in Florida, poorly—during the execution he was badly burned and left bleeding. Gory photos of the execution were posted on the Florida Supreme Court’s website, and so many people tried to see them that the system crashed and was disabled for months.

Until fairly recently, a wide variety of execution methods were used, each presenting its own problems. Firing squads can misfire, the electric chair offered wildly uneven results, and by the estimation of Deborah Denno, the gas chamber was the worst of them all. Speaking of an execution in Arizona, Denno recalls that “Donald Harding’s eleven-minute execution and suffocating pain were so disturbing for witnesses that reporters cried, the attorney general vomited, and the prison warden claimed he would resign if forced to conduct another lethal gas execution.”

Out of these many problematic procedures came a general consensus that lethal injection is the best possible choice. In the United States, every state with the death penalty except Nebraska has made lethal injection the default method of execution, though some states allow the condemned to choose an alternative method. The reasons for this consensus are unclear, but one reason might be the perception that lethal injection is the most humane of the possible options. Part of that perception might draw from the fact that the lethal injection method, unlike hanging, the electric chair, or lethal gas, resembles a therapeutic use of medicine. This is especially true since the sedative and (particularly) the paralyzing agent often prevent the prisoner from screaming or thrashing around during the execution.

Given the seeming agreement that lethal injection is the best choice for executions, one would expect that the predominant method of lethal injection would have been at least as thoroughly studied as electrocution was before being implemented by New York State in 1890. However, it seems that the most common method of executing by lethal injection was developed by Oklahoma’s medical examiner after several physicians refused to participate in the project, citing the Hippocratic Oath. That medical examiner’s three-drug process has become the standard for lethal injection, but when asked why he chose those three drugs, he responded, “Why not?”

To describe any method as the “standard” may be a stretch, given that there are nearly no standards governing lethal injections in some of the states which use it. Some require doctors to be present, while others do not; some have extensive written protocols, while others either do not have such thorough protocols or refuse to divulge their any protocol they might have. Some states, meanwhile, seem thoroughly disinterested in the proper administration of lethal injection. Alan Doerhoff, the surgeon in Missouri who mixed the lethal dosages for executions in that state, admitted in a deposition that he did not know of a written protocol and believed he had the ability to change it if he wanted, anyways. Further, he conceded that he relied on his memory when mixing the drugs, and concluded that “It’s not unusual for me to make mistakes… But I am dyslexic and that is the reason why there are inconsistencies in my testimony.” Doerhoff was finally relieved from his duties after it came out in the press that he had been sued for malpractice more than 20 times.