Sunday, 16 December 2007

What lies behind the case of lethal injection?

By Franklin E. Zimring - Special To The Bee
Published 12:00 am PST Sunday, December 16, 2007

This is a peculiar era for capital punishment in the United States and not simply because there is a de facto moratorium on execution while the U.S. Supreme Court decides whether the chemicals used in lethal injections pose an unreasonable risk of excessive pain. The legal fight about lethal injections is really one symptom of a much broader set of concerns about the death penalty, and two puzzles in the lethal injections cases illustrate the larger confusion and mixed feelings.

While support for the death penalty remains a majority sentiment, most citizens worry about the fairness of the justice system and the execution of innocent defendants. These mixed feelings produce odd patterns of public opinion. In one set of surveys six years ago, 63 percent supported the death penalty, but 51 percent favored a moratorium on executions until research proved that the system was fair and reliable.

Perhaps this indicates that few people are in a great hurry to execute prisoners, particularly in California. The state has the largest death row in the United States and has averaged fewer than one execution a year since executions resumed in 1992. However, two executions in late 2005 and a cluster of four scheduled last year, created palpable anxiety and discomfort about a more frequent spate of executions. One sensed a sigh of relief when the execution of Michael Angelo Morales, who murdered a 17-year-old Lodi girl, was postponed in February after a federal district court judge in San Jose set new restrictions on lethal injection procedures.

Perhaps the ambivalent public in California is more comfortable with a death penalty that produces no executions than with stories about pending lethal injections covered regularly on the nightly news. That ambivalence is a necessary backdrop to understanding the oddity of the lethal injection controversy.

Mixed feelings about the brutality of executions inspired the idea of lethal injection. Gov. Ronald Reagan first suggested in 1973 that the pain-free injections veterinarians used to put down injured horses might be a more humane way to carry out capital punishment than the gas chamber and the electric chair. Oklahoma first authorized lethal injection in 1977, and Texas carried out the first lethal injection in 1982.

Yet the procedures used in Texas and all the other states that adopted lethal injection differed from Reagan's 1973 suggestion in two critical respects.

First, doctors have not been involved in an execution of a human by lethal injection. Because doctors are forbidden to assist in executions for ethical reasons, no physician checks dosages or looks for indications of pain or assures proper methods of administration.

The second difference between putting pets to sleep and lethal injection of humans is the chemicals used to take life. Vets put down animals with a large dose of a sedative, such as sodium pentothal. It may take a while, but it is painless. The people who created the lethal injection cocktail used a more complicated three-drug sequence – thiopental as a sedative, then a paralytic agent, and then a drug to stop the heart and end life. The advantages of three drugs over one are cosmetic – the process can be swifter and somewhat less discomforting for observers. But the process is complex, leaving many more ways that the plan can go wrong. Too little sedative followed by paralysis can produce horrible pain well before death but no capacity for the prisoner to express it.

The first round of lethal injection litigation to be argued before the Supreme Court in January, Baze v. Rees, will probably only decide technical questions about who has the burden of proof on the risks of specific execution methods. But the fact that the court has stopped the execution process to consider the risks of lethal injection reflects a large set of second thoughts about the need and cost of capital punishment.

Two puzzles in the current litigation before the Supreme Court deserve public scrutiny. One is why it took so long for any court to pay close attention to the problems. No state or medical organization conducted a serious medical evaluation of the practice. This unevaluated execution mix was used 900 times before the courts called time out. Why?

A second mystery is the unwillingness of states to simply change to a single sedative injection so that executions can resume. Why do California officials persist in submitting a three-drug protocol to the federal court when the court has indicated that the combination is dangerous?

Almost three quarters of the states that have the death penalty use it infrequently or not at all. Death sentences and executions have been declining in the United States for almost a decade. Last week, both houses of the New Jersey state legislature passed a bill to abolish the state's death penalty, a measure the governor has promised to sign.

Executions reached their peak at 98 a year in 1999, but then dropped to 53 by 2006 – even before objections to lethal injection arose. The number of death sentences sought by prosecutors and imposed by juries has dropped as well. The highest level of death sentences in the past 15 years was 317 in 1996. In the next nine years, the number of death sentences dropped 60 percent to 128 in 2005. Prosecutors and juries now issue fewer than half the death verdicts they did only a decade ago. Have people gone soft on public safety?

Public safety has little to do with this debate. Whether the state of California has no executions next year instead of one or two has little or no impact on the crime rate. We lock up 250,000 people in this state each year to protect the public – and none of the 650 people on death row will become a threat to the public because they won't get out.

The fact that public safety doesn't require executions turns out to be a crucial flaw in the argument for the death penalty. Why should we run the risk of injustice and brutality for punishment we don't really need?


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