Supreme Court Reviews Lethal Injection Policy

Although it is the most common method of public execution in the United States, the Supreme Court is taking the process of lethal injection under review to determine whether it fits the Eight Amendment's description of "cruel and unusual punishment." Deborah Denno, a law professor at Fordham University, speaks with Liane Hansen about the issue.

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LIANE HANSEN, host:

The Supreme Court has announced that it will review the constitutionality of lethal injection procedures. It's not that the court is having second thoughts about the death penalty. This case is about whether the mix of drug used to kill prisoners violates the Eighth Amendment of the Constitution, which prohibits cruel and unusual punishment.

Fordham University Law Professor Deborah Denno is an expert on lethal injection and she says that the process itself does not violate the Eighth Amendment.

Professor DEBORAH DENNO (Law, Fordham University): Basically, the prisoner is put on a gurney and three chemicals, in most states, are injected. The first chemical is a sedative that supposed to make the prisoner go to sleep. The second is a paralytic agent that literally paralyzes the prisoner. And the third is a toxin that induces cardiac arrest.

So under a lethal injection that works, the prisoner would fall asleep, be paralyzed so he wouldn't jerk around at all. And then the third drug would induce cardiac arrest and make for a pretty quick death.

HANSEN: Hmm. So that wouldn't be considered cruel and unusual?

Prof. DENNO: It wouldn't be and, you know, theoretically, lethal injection can work if it's done correctly by the right people. Unfortunately, there's a lot of evidence to suggest that the people doing this are grossly inexperienced. I've done two nationwide surveys of lethal injection protocols in this country, one in 2001 and the other in 2005. Disproportionately, people who are conducting these executions are grossly ill-trained. They're individuals who have no background in how to inject anyone, much less a prisoner who's physiologically compromised in some way and in a setting that almost ensures there are going to be problems.

HANSEN: What is so hard about doing lethal injections?

Prof. DENNO: It's the process itself that almost ensures these lethal injections aren't going to work. A big factor that perhaps the public doesn't realize is that, of course, this is a punishment. It's administered in a prison under a setting and circumstances that have to ensure that a punishment is going to take place.

So oftentimes, people say gee, I go and have an operation and it's very smooth and I fall asleep instantly. But this is not a hospital setting. The executioner is not at the bed of the prisoner. They're typically in another room. They're not typically in themselves doing the injection. There are a lot of people doing this. There's a diffusion of responsibility. And all the circumstances and the ignorance of the process lead to a punishment that is almost are - very often going to be cruel and unusual because of those kinds of circumstances.

HANSEN: So in other words, the wrong amount of a drug could be injected, the drugs could be injected in the wrong order, that kind of thing?

Prof. DENNO: Absolutely. I mean, there's evidence to show that. Even some of the protocols have listed drugs in the wrong order. There's been evidence, as there was in California, that the executioners hadn't even looked at the protocol. Some didn't even know there was a protocol.

When there is a protocol, there's no assurance that it's going to be followed even if you have a doctor there who's a surgeon, as was the case in Missouri. That surgeon, who was dyslexic, admitted in cross-examination that he could have oftentimes given the wrong amount of the drug. So it's the lack of oversight, the lack of trained people, the fact that the wrong drugs or, you know, the wrong amounts could be injected, et cetera. There are just numerous problems.

HANSEN: How cruel and unusual does a form of punishment have to be to violate the Constitution?

Prof. DENNO: Well, one of the issues before the Supreme Court is what kind of Eighth Amendment standard that court thinks is necessary for reviewing any execution methods such as lethal injection. So there's a lot of confusion there. But the primary question is whether or not this execution method is unnecessarily cruel and unusual.

HANSEN: Unnecessarily cruel and unusual.

Prof. DENNO: That's right, which would suggest that if there are alternatives -and there are - that it could meet Eighth Amendment standards if some changes were made.

HANSEN: Hmm. Other alternative procedures for capital punishment, other than lethal injections, what are the other methods that are available now?

Prof. DENNO: The other methods are electrocution, which is still viable, lethal gas, hanging and firing squad. Of the - of all of them, I think the firing squad is the least cruel and unusual but it's the one that's used the least in this country.

HANSEN: Why?

Prof. DENNO: Firing squad has this reputation of barbarity. Even though it's the most widely used execution method in the world. You know, people associate it with the Wild West, with uncivilized countries, assuming we are a civilized country, and it just has a bad reputation even though, you know, scientifically, it's probably the least cruel and the quickest.

HANSEN: In some respects, even though I said at the beginning of this that it's - the court is not having second thoughts about the death penalty. But given that the methods of execution are being reviewed, do you think that this is maybe a chink in the wall of the death penalty?

Prof. DENNO: I think that the lethal injection issue is a chink in the wall against the death penalty and it has been one of, you know, a number of snowballing problems that have joined together to reveal some of the weaknesses of the death penalty.

HANSEN: And…

Prof. DENNO: And that said, I don't think it's going to stop the death penalty. I think the court is - will review these methods, perhaps come up with an Eighth Amendment standard that states can use. I don't think this is going to be the end of the death penalty.

HANSEN: Deborah Denno is a professor of law at Fordham University. Thank you so much.

Prof. DENNO: Thank you.

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