The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment prohibits the federal government from imposing excessively harsh penalties on criminal defendants. The final section of this amendment, known as the Cruel and Unusual Punishments Clause, is of utmost importance. It offers defendants protection from inhuman treatment as a mechanism for obtaining pretrial release or as punishment for crime after conviction. However, the vague nature of this clause is the source of controversy and confusion, begging the question: how do Americans define cruel and unusual?
Although the Supreme Court has persistently ruled in favor of the constitutionality of capital punishment, the Eighth Amendment remains a rallying point for many anti-death penalty advocates. Crucial to discourse about the ethics of capital punishment, this clause remains prominent due to the advent of new methods of execution. For the first 150 years of American history, prisoners were executed by hanging or firing squad. In the 1880s, the electric chair was invented, and subsequently, electrocution became the standard procedure until 1982, when a state penitentiary in Huntsville, Texas administered the first lethal injection. Today, close to 90% of executions are carried out via lethal injection, accomplished through an intravenous insertion of a combination of drugs that includes an anesthetic, a paralytic, and a fatal dose of potassium chloride, which ultimately stops the heart.
Unsurprisingly, most pharmaceutical companies are firmly against allowing states to use their drugs for executions, taking extreme measures to avoid associating their brand with state-sanctioned killings. Thus, strict limits are imposed on who can buy the drugs used for lethal injections, drug manufacturers have filed suits against states insisting on the return of their products, and, in one case, a company ceased making a drug entirely in order to keep it out of the nation’s death chambers. Until the 2011 halt in production, this drug, sodium thiopental, was the country’s most commonly used anesthetic in lethal injections; it has since been banned by the FDA. Some states have responded to this by trying to import drugs overseas, which violates federal law, or have resorted to purchasing their sedatives from unregulated pharmacies with poor safety records.
The preparation of lethal injection drugs is a process historically rife with errors. Lengthy sentencing periods have led to the expiration of drugs before their usage, which, in turn, has resulted in an increased execution pace in some states as they rush to utilize their soon-to-be out of date products. Incorrect drugs have been administered; in the 2015 Oklahoma execution of Charles Warner, potassium acetate was used instead of potassium chloride, causing Warner to say upon injection that, “It feels like acid,” and, “My body is on fire,” according to witnesses. Dosage has also proved flawed in multiple cases. In the botched execution of Stephen McCoy, the injection caused his chest to heave up and down as he gasped for breath, choked, and arched his back up and off the gurney. This violent physical reaction was admitted by the Texas attorney general to likely be due to the fact that, “The drugs might have been administered in a heavier dose or more rapidly” than is standard procedure.
Massive intravenous doses of drugs can injure the delicate wall between capillaries and air sacs in the lungs, allowing them to fill up with fluid. Called pulmonary edema, this process can induce feelings of suffocation and drowning in its sufferers. A 2016 NPR analysis of more than 200 autopsies found that pulmonary edema developed in more than 84% of the related executions.
Recent years have also seen the increase in usage of a drug called midazolam in executions, despite medical professionals raising concerns about its inability to render inmates unconscious. Critically, midazolam was not developed to induce anesthesia. When there is a failure to anesthetize an inmate, they are likely to feel not only the suffocating sensation of pulmonary edema, but also the pain of the potassium chloride injection, which is reported to induce acute physical suffering. Upon being injected with midazolam, inmates have exhibited side effects that include gasping, lurching, writhing, yelling and vomiting.
The ethical code of medical professionals is in opposition to administering a lethal injection; acting to cause a patient’s death is a violation of their fundamental duty as physicians to first do no harm. Because most doctors will not participate in executions, IVs are often placed by nonmedical prison personnel or nurses with little experience. This leads to serious deficiencies in the execution process, such as the inability to find a vein, which is compounded by inmates’ drug use or poor health. The execution of Stephen Peter Morin necessitated nearly 45 minutes of technicians probing his arms and legs with needles due to complications arising from a history of drug abuse. Executioners also mistakenly insert IVs into tissue, leaving individuals in agony without delivering the drugs’ effect, as in the case of Angel Diaz, whose improperly placed IVs also resulted in large chemical burns that spread down his forearms during the duration of his execution.
The lethal injection has largely replaced other execution methods, in part due to the appearance of a peaceful death brought on by the inclusion of a paralytic in the three-drug cocktail. This addition is, in fact, unnecessary to the effectiveness of the execution; the paralytic’s purpose is to maximize the comfort of witnesses, ensuring that the lethal injection remains distant from “cruel and unusual punishment.” In the United States, the lethal injection has a rate of error higher than all other forms of execution, at close to 7.1%. Nevertheless, the Supreme Court has not yet ruled on whether the pain associated with pulmonary edema and potassium chloride injection violates the Eighth Amendment, and 55% of American citizens remain in favor of capital punishment, a system reliant on the efficacy of the lethal injection.