Jacob Sullum

"From this day forward," Supreme Court Justice Harry Blackmun wrote in 1994, "I no longer shall tinker with the machinery of death." Although the Constitution clearly permits the death penalty, Blackmun had concluded it was unconstitutional in practice because it could not be imposed fairly and consistently.

By agreeing to consider a challenge to current methods of lethal injection, the Supreme Court has begun to tinker quite literally with the machinery of death, a repair job that promises to further slow an already creaky contraption. For opponents of the death penalty, the ultimate goal is a finding that execution is unconstitutional in practice because it cannot always be carried out instantly and painlessly.

As a matter of constitutional law, I think they're wrong. But the squeamishness reflected by the continuing quest for a perfect execution method suggests the abolitionists may ultimately win the policy debate, and perhaps they should.

On the face if it, the objections raised by Ralph Baze and Thomas Bowling, two murderers on Kentucky's death row, can be readily addressed. Indeed, their argument that Kentucky's execution procedure violates the Eighth Amendment's prohibition of "cruel and unusual punishments" hinges on the claim that it poses "an unnecessary risk of pain and suffering" -- "unnecessary because it could easily be avoided."

Kentucky's method, similar to those followed by almost all of the 36 other states that use lethal injection, involves three substances: Sodium thiopental knocks the prisoner out, pancuronium bromide paralyzes his muscles, and potassium chloride stops his heart.

The main concern about this procedure is that an inadequate or improperly administered dose of thiopental (or too long a delay in the execution process) could leave a condemned man conscious while his muscles, including the ones needed for breathing and communication, stop working. In that case, he would experience suffocation, followed by the pain associated with the potassium chloride injection, without being able to signal his suffering.

Replacing thiopental with a longer-acting barbiturate and/or eliminating the pancuronium bromide would avoid this scenario. For that matter, a big dose of a longer-acting barbiturate (the method used for physician-assisted suicide in Oregon) would be enough on its own to cause death, greatly simplifying the procedure. Other possible fixes include better training of the technicians who carry out executions and the use of a brain wave monitor to verify sedation.

But any feasible execution method will be imperfect, subject to equipment malfunction and human error, and arguably inferior to available alternatives. The Supreme Court has not ruled on the constitutionality of an execution method since it upheld the use of firing squads in 1878. If it endorses the Eighth Amendment standard urged by Baze and Bowling, it will invite endless litigation over the details of each state's procedures.

It's worth recalling that state legislatures adopted lethal injection in response to the shortcomings of the electric chair and the gas chamber, which themselves were presented as more humane alternatives to hanging. All of these methods, if they're done properly, can kill a man with minimal pain, but they can also be botched, and none is pleasant to witness.

On that score, it's striking that abolitionists‚ accounts of botched executions often feature gruesome details that do not indicate prolonged suffering, such as involuntary defecation, smoking skin, and accidentally severed heads. If a man is already unconscious or dead, the condition of his body cannot cause him any discomfort. Why does it still upset people who see or hear about it?

This is a question that should interest conservatives who believe disgust reflects moral intuition. If the aim is to quickly and reliably kill people while inflicting as little pain as possible, it would be hard to improve on the guillotine or a close-range shot to the back of the head. Yet we shrink from such methods, perhaps because they too vividly display the reality of killing a man in cold blood.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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