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Slate's Jurisprudence: Cruel, Unusual Injections?


This is DAY TO DAY. I'm Alex Chadwick.


And I'm Madeleine Brand. Coming up: a love story with a really tasty happy ending.

CHADWICK: First this: In California, a federal judge is considering whether the form of lethal injection currently used for executions in the state is constitutional. The case involves a convicted rapist and murderer who argues that the injections may be unnecessarily painful. He's scheduled to be executed next week. This is just the latest of a growing number of such challenges around the country. Joining us for perspective on the matter is Dahlia Lithwick. She's legal analyst for the online magazine Slate and for DAY TO DAY. Dahlia, what exactly do these death row inmates say is the matter with the lethal injection process? This is supposed to be a more humane form of execution.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate): That's right, Alex, and 37 of the 38 states that currently have the death penalty, this is their preferred method of execution, but prisoners are complaining that it doesn't work, that it's causing a tremendous amount of pain, more so than was present in death sentences using the electric chair or gas. If those other forms of execution violated the constitutional ban on cruel and unusual punishment, they argue, then how much more so should this, which may be causing more pain?

CHADWICK: Just explain will you. This is a kind of a three-drug procedure. What's the part that doesn't work?

Ms. LITHWICK: That's right, Alex. It's a combination, a sort of cocktail, if you will, in most states, of three different drugs that are delivered sequentially to the prisoner. The first is called sodium pentothol. That renders him unconscious. The second is something called pancuronium bromide, and what that does is slowly paralyzes his muscles and his lungs. The third drug, and the final one, is called potassium chloride. That induces cardiac arrest, and eventually, that's the one that's supposed to kill him.

The problem that these inmates are raising is that number two, by paralyzing your muscles, makes you unable to express the actual agony that you're feeling when number three kicks in, so that, in effect, because your muscles are locked, you can't cry out, and you can't moan. What you're doing is experiencing horrible pain that isn't communicated in any way.

And a 2005 report in a medical journal, British medical journal called The Lancet, sort of shored that up. They said in the 49 executions that they had studied, in 43 there wasn't enough of that anesthetic to really mask the pain, and they claim that as a consequence, an awful lot of people dying of lethal injection are being subject to long moments of painful burning agony that they just cannot communicate.

CHADWICK: So, the judge in this case, how will he make a decision if indeed you can't tell because you're masking the signs of pain? How do you know?

Ms. LITHWICK: Well, what he says is he's very concerned, and it's important to bear in mind he has rejected such claims before, he's saying that recent accounts of death row inmates who suffer episodes of very heavy breathing, of heaving chests, long, long periods of time when it's clear that they are not yet anesthetized, concerns him, and he cited specifically the Stanley Tookie Williams execution. Williams was still breathing a minute after the drug was administered. And the January 13 execution of a prisoner called Clarence Ray Allen, who needed to be given a second dose of one of the chemicals. What he's saying is, I need to know whether there are other alternatives out there that are less painful, whether the parties can agree. So what he's not going to do is stop the execution. He would stop the scheduled execution for next week and then find a different means for doing so, if in fact he determines today that there needs to be a hearing on the matter.

CHADWICK: Aren't these cases inevitably going to the Supreme Court, Dahlia?

Ms. LITHWICK: Well, that's where it really gets wacky, Alex, because for the past few weeks, the Supreme Court has halted two Florida executions, they've agreed to stay a Missouri execution, but then at the same time, they've permitted three other executions in Texas and Indiana. All of these claimants were saying, lethal injection, lethal injection, and so the question becomes: what is the pattern here? What is the Supreme Court trying to tell us? Experts are saying that it looks like the majority of the court is willing to hear argument that says, I want to raise this as a civil rights claim at the trial level. So they don't want to hear the issue on the merits of cruel and unusual punishment, but they do say that the prisoners who come forward and say they never got to argue this should have their day in court.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for DAY TO DAY. Dahlia, thank you again.

Ms. LITHWICK: My pleasure. Transcript provided by NPR, Copyright NPR.

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