_“What is murder in the first degree? It is cruel, calculated, cold-blooded killing of a fellow human. It is the most wicked of crimes, and the State is guilty of it every time it executes a human being"

William Randolph Hearst, American publisher and philanthropist._

The idea to replace death by hanging or the firing squad with a chemically induced form of execution was first suggested in 1888 by New York MD Julius Mount Bleyer in an article in the Medico-Legal Journal. He proposed to inject the condemned with six grains (ca. 390 mg.) of morphine, in what he saw as a more humane, cheaper way to put someone to death, thereby also robbing the person of the potential hero status conferred by hanging. His idea did not find any following. Nearly half a century later, Nazi Germany developed the “T-4 Euthanasia program,” one of seven methods to eliminate those deemed “unworthy of life.”

In 1977, the Oklahoma State medical examiner, Jay Chapman, developed what has become known as “Chapman’s Protocol,” a three-step injection method that was approved by Dr. Stanley Deutsch, MD, then head of the Department of Anaesthesiology of the Oklahoma University Medical School. Although making use other chemicals than those used by the Nazis, the method is fundamentally the same that is the intravenous injection of chemicals that will induce death within minutes.

Following Chapman’s protocol, once the prisoner has been placed on a gurney and is properly restrained, two intravenous (IV) tubes are inserted in his arms and wired through a wall-opening leading to the “anteroom,” where the executioner takes place. A saline solution is flushed through the IVs. Then a three-step procedure follows:

• An anaesthetic, usually sodium thiopental (widely known as “Pentothal”), a powerful barbiturate, will induce a deep sleep and general anaesthesia. With the proper dose, the critical concentration of the chemical in the brain will be reached within 30 seconds. Then, the saline solution flushes again through the IVs.

• A paralysing agent, such pancuronium bromide (“Pavulon”), tubucarine chloride, or succinylcholine is injected. These are all muscle relaxants that will induce the paralysis of the diaphragm and the lungs. It works within 1-3 minutes after injection. Then, once more, the saline solution is flushed through the IVs.

• A toxic agent (not in all US states), such as potassium chloride, is injected in a lethal dose to induce cardiac arrest. A minute or two later, the prisoner will be declared dead.

Oklahoma was the first state, in 1977, to pass a law that replaced the electric chair with lethal injection to execute death row inmates. Texas followed suit later that same year and carried out the first execution by lethal injection in 1982. From the 1.119 executions carried out since 1976, 948 people have been executed by lethal injection and 171 by other methods, mostly electrocution (as of August 15, 2008).

Recent developments

_“It is a weak nation that finds it appropriate to execute its own citizens to uphold morality”

_Lars Von Trier, Danish film maker

The painless and humane aspects of the execution by lethal injection have been increasingly put into question by eminent MDs, especially since 2003, as extensively reported in the United States news media. Specialists (anaesthesiologists, neurologists, and biochemists) contend that death by this method is often excruciatingly painful and agonizingly long, due to several factors, such as the wrong dosage of the chemicals, an incorrect protocol, or inadequate monitoring during the procedure.

Although the method seems foolproof and painless at first sight, and on paper, it has often led to many problems and has resulted in a cruel form of torture lasting for up to well over thirty minutes in some cases before a prisoner could be declared dead. Medical specialists have pointed out that several major flaws in the lethal injection method make it a “cruel and unusual punishment.”

For example, the first chemical, the thiopental, is a so-called ultra-short acting barbiturate whose concentration in the brain will wear off by being redistributed to the entire body within 30-60 seconds after it has been injected. As soon as the thiopental concentration begins wearing off consciousness returns and the prisoner will suffer an excruciatingly painful death. When the second chemical, the muscle relaxant is flushed through the IVs, cause the paralysis of every muscle in the body, making it impossible for the inmate, to communicate that he is conscious and in pain. The prisoner dies slowly suffocating. Even if the first chemical is still present in sufficient amounts in the brain when the muscle relaxant is injected, the danger exists that the muscle relaxant will actually dilute the thiopental, resulting in the same situation, i.e. the person regains consciousness and the anaesthetic effect disappears. According to several specialists, the dosages actually used during executions are often unacceptably low, lower even than would be admissible during surgery.

Another factor that makes death by lethal injection a potentially horrifyingly painful way to die is the inexperience of the personnel administering the drugs. Not only are they not medically trained to administer such drugs, but they do not realize that each person needs specific doses of the drugs, according to various parameters such as body weight, general condition, condition of heart and lungs, etc, and that such a procedure should be monitored closely. The executioner is located in another room and cannot monitor the situation of the person being put to death, and is unable to assess whether the person has regained consciousness and experiencing severe distress.

The ethical problems surrounding medicated executions have been pointed out repeatedly in recent years. Whereas the American Medical Association states that a physician’s position on the death penalty is a matter of personal view, it also emphasizes that he/she should not participate in an execution, except for certifying death, but only after someone else has declared the person dead. Most states do not require that a MD administer the drugs, but some do, which is in direct violation of the Hippocrates Oath (“first do no harm”). On the other hand, if no specialist, such as an anaesthesiologist, is present to control that the proper dosage of the chemicals is administered, and to monitor the whole procedure to ensure that the death row inmate is not regaining consciousness or in distress, there is no way to prevent “cruel and unusual punishment.”

As more and more arguments are being brought forth supporting the contention that death by lethal injection is much less simple and pain free as originally believed several executions, in various states, have been stayed. The United States Supreme Court agreed on September 25, 2007, to hear a lethal injection challenge arising from two Kentucky death row inmates, Baze and Bowling, in a case known as Baze v. Rees. Baze and Bowling argued that lethal injection constitutes “cruel and unusual punishment” and is therefore in violation of the United States Constitution’s 8th Amendment (see above, “The death penalty in the United States”). Rees, Commissioner of the Kentucky Department of Corrections, had refused their petition in State Court, upon which Baze and Bowling appealed to the Supreme Court.

A few hours after the Supreme Court made the announcement of the upcoming hearing, Texas executed the last prisoner before a de facto* moratorium on all executions became effective in all states with the death penalty, pending the Supreme Court’s ruling on the matter (*de facto = existing in fact, whether by right or not, as opposed to de jure = existing by law or decree). After the hearing in January, 2008, the Supreme Court ruled in favour of Rees by a vote of seven to two, on April 16, 2008, thereby upholding Kentucky’s method of lethal injection. Several states resumed executing death row inmates a few weeks later. From May through September, 2008, twenty-four inmates have been executed by lethal injection, nine of them in Texas (where twelve more are scheduled to be executed before the end of the year).

Nebraska (electric chair) is the only state that does not use lethal injection as sole or alternative method of capital punishment. Twenty states use lethal injection as well as alternative methods (lethal gas, electrocution, firing squad, hanging), contingent on the prisoner’s choice, or the dates of sentence or execution, or the unconstitutionality of the method at the moment of the execution. The other states have recourse to lethal injection only.

In recent years, other countries in the world have adopted lethal injection as their preferred method of execution, most notably China (1997), Guatemala, the Philippines (1999), Thailand (2003), and Taiwan (2005).

The case of Ernest Ray Willis

Ernest Ray Willis became the eighth person exonerated from Texas death row, on October 6, 2004, and the 120th person nationwide since 1973. Willis had been sentenced to death seventeen years before for allegedly setting a house on fire, thereby killing two people. United States district judge Royal Ferguson held later that the state had administrated medically inappropriate antipsychotic drugs to Willis without his consent; that the sate had suppressed evidence favourable to Willis; and that Willis had received ineffective legal representation during both the guilt and the sentencing phases of his trial. He mandated the state to either free Willis or to try him again.

The District Attorney hired a new fire investigation expert to examine the evidence, and the expert’s conclusion was that “there is not a single item of physical evidence in this case which supports a finding of arson” (San Antonio Express-News, October 5, 2004).

The State Attorney General’s office then decided not to call for a new trial, and the prosecutors dropped all charges against Ernest Ray Willis. In his conclusion, District Attorney Ori White stated that Willis “simply did not do the crime,,, I’m sorry this man was on death row for so long and that there were so many lost years” (Los Angeles Times, October 7, 2004).

Since Ernest Ray Willis’ exoneration, nine more men have been freed from death row. The latest, as of August, 2008, are Glen Edward Chapman (April 2, 2008) and Levon “Bo” James (May 2, 2008), both from North Carolina, after respectively 14 and 15 years behind bars.

Since 1973, 129 men and women have been freed from death row, whether because their conviction was overturned and they were acquitted at a re-trial or all charges against them were dropped, or because they were issued an absolute pardon by their governor on the basis of new evidence of innocence. They have spent an average of 9.5 years on death row.

But other innocent men and women did not have that luck and have been executed. Others are still on death row today, and have been for years; some, like Roger McGowen, for over two decades.

“I shall ask for the abolition of the punishment of death until I have the infallibility of human judgement demonstrated to me” - Thomas Jefferson

“As a victim, as a colleague, I stand before you to ask that you vote to abolish the death penalty, not so much because I want murderers to live, but because if the state kills them, that forever forecloses the possibility that those who are victims might be able to figure out how to forgive. We’ve lost enough already. Don’t take that option for healing away, please." - Robert Renny Cushing, whose father was, murdered in 1988, speaking as member of the House of Representatives in New Hampshire, 1988.