Thursday, October 27, 2005
Hanging was the worst use a man could be put to.
— Sir Henry Wotton, The Disparity Between Buckingham and Essex
Herewith a primer on the death penalty. It is the device society has chosen to teach murderers that the taking of human life is wrong. It is also a way of insuring that were they to prove themselves poor students, they would nonetheless not repeat the offense.
Proponents of the death penalty, while believing in its usefulness in a civilized society, nonetheless want it to be humanely administered lest they appear to be a cruel and insensitive lot. All would agree that the sight of a man twitching at the end of a rope no longer inspires the kinds of pleasure that it did in less civilized times and it is that love of things humane that has made lethal injection the preferred method of dispatching the unwanted.
According to a website with the fetching name of “Lethal Injection” J. Mount Bleyer, a doctor in New York first proposed lethal injection in 1888 saying it was more humane than hanging and deprived the victim of “hero status”. Now lethal injection has been challenged in Tennessee. Although unsuccessful, the challenge gave proponents of humane execution a scare and may be a harbinger of things to come since the death dealing cocktail used in Tennessee is used in all states that use lethal injection.
Abu-Ali Abdur’Rahman was sentenced to death for the 1986 murder of Patrick Daniels. Hoping to avoid execution, he claimed that the lethal cocktail’s side effects make it a form of cruel and inhuman punishment.
The objectionable part of the cocktail is Pavulon. Pavulon paralyzes the skeletal muscles but not the brain or nerves. The recipient of the chemical, it has been disclosed, cannot move or speak nor can he or she let onlookers know that contrary to appearances, what is happening is no fun at all and even extremely painful. Because of that, Abu challenged the proceeding. The lower court judge, although upholding the constitutionality of using the particular cocktail observed that “Pavulon gives a false impression of serenity to viewers, making punishment by death more palatable and acceptable to society.”
Commenting on the use of that Pavulon in executing people Sherwin Nuland, a professor in the Yale medical school said: “It strikes me that it makes no sense to use a muscle relaxant in executing people. Complete muscle paralysis does not mean loss of pain sensation.” The Tennessee legislature, if not the Tennessee Supreme Court agrees with him. It passed the “Nonlivestock Animal Humane Death Act” some years ago.
Nonlivestock is defined to include pets, captured wildlife, exotic and domesticated animals, rabbits, chicks, ducks and potbellied pigs.” It says that “any substance which acts as a neuromuscular blocking agent, or any chemical which causes a change in body oxygen may not be used on any nonlivestock animal for the purpose of euthanasia.” The American Veterinary Medical Association has come out against using Pavulon. According to a 2000 report from the Association: “the animal may perceive pain and distress after it is immobilized.”
Abdul may have thought that if the American Veterinary Medical Association considers the use of Pavulon inhumane when administered to animals, the Tennessee Supreme Court might consider it inhumane when administered to humans. He was wrong.
In a unanimous decision for the court released in mid-October, Justice E. Riley Anderson said none of the reasons advanced by Abul for finding the cocktail to be a form of cruel and unusual punishment was persuasive. He said the court had never been asked to decide the constitutionality of administering the particular ingredients found in the death dealing cocktail but presented with the issue, found their use to be constitutional. Explaining the court’s reasoning Justice Anderson wrote: “In ascertaining ‘contemporary standards of decency,’ a court must look to ‘objective evidence of how our society views a particular punishment today’ . . .. The most reliable objective evidence of contemporary standards is most often found in legislation.” He went on to say that “ there is overwhelming evidence that lethal injection which is commonly thought to be the most humane form of execution, is consistent with contemporary standards of decency.” He did not say why the legislature which “provides the most reliable evidence of contemporary standards” passed a law that suggested legislators believed Pavulon’s use violated contemporary standards of decency when used to euthanize nonlivestock animals.
Had humans been included in the legislature’s definition of non-livestock animals, the case would have been decided differently. Had a homeless unadoptable cat that was destined to be euthanized with the lethal cocktail appealed to the court, Justice Anderson would have sided with the cat. Abdul’s problem was that he was a human. Barring an appeal, that will soon no longer be a problem for him.
Discuss this column
After doing some research, I see this is a classic human error issue. The following is an excerpt of a New York Times article that can be read in its entirety at http://www.demaction.org/dia/organizations/ncadp/news.jsp?key=650&t=
In an affidavit supporting the Kentucky inmates, Dr. Mark J. S. Heath, an anesthesiologist who teaches at Columbia University, wrote that there were countless ways for prison personnel to fail to deliver the first drug properly. Among them, Dr. Heath wrote, are mistakes in mixing the drug, which is stored as a powder; problems with intravenous tubes; and the possibility that “the drug may be diluted or diverted by personnel intending to use it for purposes of substance abuse.”
Earlier challenges have focused on the second drug in the typical sequence, pancuronium bromide. It paralyzes the skeletal muscles but does not affect the brain or nerves. A person injected only with it remains conscious but cannot move or speak as he suffocates.
Nineteen states prohibit the chemical in the euthanasia of animals.
“They couldn’t kill my dog Hunter this way in Kentucky,” said Ted Shouse, a lawyer for the two inmates, Ralph Baze and Thomas C. Bowling. Mr. Baze killed a sheriff and a deputy in 1992. Mr. Bowling killed a couple and hurt their infant son in 1990.
Some judges have said they are troubled by the use of pancuronium bromide, which makes the inmate appear serene but could in theory mask intense pain. Last year, a Tennessee judge wrote that the chemical “serves no legitimate purpose” in executions and is used only to make them “more palatable and acceptable to society” by masking the sounds and seizures that often accompany even painless death.
But the judge, Ellen Hobbs Lyle of Chancery Court in Nashville, said objections to the chemical were “hypothetical and metaphysical,” because the first drug, a short-acting barbiturate called sodium thiopental, makes inmates unconscious while the paralyzing agent does its work. An autopsy conducted on Robert G. Coe, executed in Tennessee in 2000, the judge wrote, proved that the five grams of sodium thiopental he received first had rendered him unconscious and probably killed him before the other chemicals did their work.
— Barry Thursday, October 27, 2005 #
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