Debating the Use of Lethal Injection

Ed Gordon explores the legal debate behind lethal injection with Michael Rushford, president and CEO of the Criminal Justice Legal Foundation, and Paul Butler, law professor at George Washington University.

ED GORDON, host:

The legal debate on lethal injection rages on. I spoke to Michael Rushford, president and CEO of the Criminal Justice Legal Foundation -Rushford's foundation has filed an amicus brief in the Hill case - and Paul Butler, law professor at George Washington University.

Professor PAUL BUTLER (Law, George Washington University): Well, you know, Ed, when we had death by electrocution - that is, the electric chair - we had all these horrible witness accounts of people whose eyeballs were popping out of their sockets, or smoke coming from the head when they were electrocuted. And now, when we thought we had a more humane method, we still have these awful, awful examples: people waking up from supposedly being anesthetized and asking, can you please give me some kind of medicine to take by my mouth, because I'm in pain. It really is a question for the proponents of capital punishment. Is there a way to kill people humanely?

GORDON: Interestingly, the Supreme Court, as we know, has taken on this - the case of Clarence Hill, a man who was convicted in 1982 of murdering a police officer. He received a last minute hearing to challenge the execution method here. Mr. Rushford, do you believe that this case, in particular, has the possibility of opening floodgates?

Mr. MICHAEL RUSHFORD (President and CEO, Criminal Justice Legal Foundation): Well, the question presented in Hill vs. McDonough was whether or not a condemned murderer could - as a last minute effort to postpone his execution - file a civil rights lawsuit challenging the method, as opposed to the procedure that has been used since 1890, which is habeas corpus. Some justices didn't want to talk about the method, and this would be the first time that the Supreme Court has ruled on any method of execution in the history of the court.

But other courts have looked at this. The Tennessee Supreme Court did a full review on this. A federal appeals court did a full review on this, and as you might know, that we're doing a review here in California, as we speak. The two previous courts - the Federal Appeals Court and the Tennessee Supreme Court - both came back with a decision saying that it was not cruel and unusual to do this three-drug, essentially, euthanasia.

GORDON: Paul Butler, when we talk about floodgates, and I mentioned that the interesting point here is the floodgates - in terms of prisoners being able to talk about the method used for execution - but also the question that Mr. Rushford raises, and that's the with of one has to believe - depending obviously, and we're expecting a ruling in July, which way it comes down - the ability to use a fight, a stay of execution if you will, from the civil rights side.

Prof. BUTLER: That's right, Ed. And you know, one of the problems with the three-drug cocktail is there's so little medical evidence available. The American Medical Association doesn't even allow doctors to get involved with executions. It's considered unethical. The death penalty has had a long, troubling, complicated racial history. And so, I think a lot of groups like the NAACP and the ALCU have seen this new debate about lethal injection as just being another front in that civil rights battle.

GORDON: Let me ask this, Mr. Rushford. Your foundation filed a brief in the Hill case here. There are those who will simply suggest that much of this is smoke and mirrors, and the real argument should be the question of capital punishment, one that has been ongoing for decades now in this country. How much do you buy the argument that we're missing the big picture here?

Mr. RUSHFORD: Well, I think this case is simply a delay tactic. In the 30 years that we've been involved in appeals of death penalty cases, we've seen delay tactics used in many instances that have nothing to do with really the appropriateness of the punishment or the constitutionality of the death penalty itself. I don't think anyone that supports the death penalty would have any problem in giving any convicted murderer, after his appeals, a shot of pure barbiturate so that they would simply be numbed to death. But I must say that the medical profession has logged in on this.

Even anesthesiologists that are against the death penalty have pointed out that the dose of painkiller that is given to a murderer in the initial cocktail is ten times the amount that was used medically for years to anesthetize a 220-pound man for open-heart surgery. So the idea that there is no medical evidence to support this is facetious. We've been using this painkiller and these other drugs for a long, long time, and it's very well understood exactly how they perform. And the studies that have come out have been...

Prof. BUTLER: Except the problem with that Ed, is how do you explain all of the botched executions? You know, anyone who's had an operation knows that there's a whole protocol about what you can eat and drink before you get anesthesia. Death sentence inmates don't follow that protocol. You know, the other concern is that it's not medical personnel who are administering the execution. Often, it's prison guards, because, again, doctors considered it unethical to get involved.

Mr. RUSHFORD: The point is, is that in Vietnam, I had medics giving me shots all the time, and nurses administer shots all the time. So there's really no requirement that a doctor be there to do this. Once the protocol has been established as effective, any medical personnel can administer those shots.

GORDON: There are those who will simply suggest that we put too much weight in the comfort of prisoners, often convicted of heinous crimes in and of themselves. So that being said, I'll put this forth - Mr. Rushford, you can start and then Paul Butler follow - with the age-old question of whether or not capital punishment should indeed be legal, acceptable, okayed in this country. Isn't this where much of our time, most of our time, should be spent?

Mr. RUSHFORD: Well, that's where the debate ends up, rather than these peripheral issues about whether or not it hurts to be euthanized. But the public has made itself clear consistently for quite some time -since the '60s. And I might add that if you were a politician, you'd love to have the 65 to 80 percent of the public supporting you every time you went to the polls. And when you put a face on these murderers, the numbers go up. When you talk about Tookey Williams or you talk about Timothy McVeigh, the poll numbers immediately go up.

When you talk in the abstract, we're talking 60 to 65 percent. That's an awfully lot of public support in a democracy for a penalty that we've had folks delay - in cases where guilt wasn't even in question - for 20, 25, 26, 30 years, with legal technicalities in these cases. So, I think the public's expressed itself repeatedly. I don't know how many more times they need to do that.

GORDON: Mr. Rushford brings in the political side. We are starting to see judges, often-elected judges - even Jeb Bush - stay executions pending the Supreme Court decision. This has become a very touchy issue, politically.

Prof. BUTLER: Ed, when the public is informed on some of the specific concerns with the death penalty, again, some of the cruel and inhumane ways in which it's been administered - again, with smoke coming out of people's heads - then we see public opinion starting to change. And it's interesting that you brought up the civil rights angle before, because of course, if we took public opinion polls on various kinds of civil rights issues, like affirmative action or bussing, we might not see public support. But that's different from the constitutional issue.

You know, it's been said that the mark of a civilized society is how it treats the least among it - its poor and its prison inmates. And so the question is whether there's a way we can tinker with the machinery of death that's consistent with the values of the United States of America.

GORDON: Michael Rushford is president and CEO of the Criminal Justice Legal Foundation, and Paul Butler is a law professor at George Washington University. I thank you both.

Mr. RUSHFORD: Thank you.

Prof. BUTLER: It's always a pleasure, Ed.

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GORDON: Coming up, studies find one in seven Mexican workers are employed in the U.S., and a nation on lockdown. Incarceration rates are on the rise across the country, but what's behind the increase? We'll discuss these topics and more on our roundtable.

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