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A Lethal Dose: A Bungled Death



The United States has implemented lethal injection as a method of execution from the year 1982 onwards. Since then, it has been surrounded by controversies on botched up executions. Carthik Venkat explores the various instances where lethal injection has been administered under ambiguous circumstances.
Would you like to see a murderer get administered a lethal injection and suffer excruciating pain in wait for his death? In the US, lethal injections are legally used for executions by 32 states.
When asked about a botched up execution in Oklahoma in April 2014, the US President Barack Obama said, “We as a society need to ask ourselves some difficult and profound questions”. How should one react to botched up executions, which are part of capital punishment.Even though it shakes the conscience of many, lethal injection has become the most prevalent method of execution. However, this method of execution is in violation of the Eight Amendment of the US. Every State frames it own law on the method of execution with firing squad and hanging, among three other methods and on the severity of crimes. Capital murder and first degree murder carries the death penalty if a jury finds it plausible in those states where the death penalty is applicable.
Take the case of Baze vs. Reez; the defense in the case argued that the chemicals used for execution had the risk of causing unnecessary pain – a cruel and unusual punishment prohibited under the Eight Amendment. The Supreme Court of Kentucky upheld the decision to execute Baze stating that it was humane, did not carry a substantial amount of unnecessary pain and the Supreme Court does not require completely painless executions. After their efforts in the State’s highest court, the defense then appealed to the ultimate tribunal of the country, the Supreme Court of the US which upheld the ruling by a vote of 7-2.
Commonly known as the drug cocktail, lethal injection is a combination of drugs varying from one to three in number. Single drug execution used to be carried out in Ohio till 2013, when the state switched back to using a combination of three, since its manufacturer stopped producing it. The recent controversy on the fatal injection, however, is the amount of time and pain an inmate must suffer. The US is guilty of experimenting with novel drugs in carrying out executions. In 2009, Kenneth Biros was the first person to be executed with a single drug, ‘sodium thiopental’. Since 1982, various drugs have been used for the process.
The question then arises: For criminals, should there be a debate on this issue? After all, convicted criminals are human beings with rights. People have come a long way since the days of the breaking wheel and the guillotine. The right of prisoners is gradually attracting public attention with the media representing the issue more seriously. As on date, except for Belarus, Europe and parts of Central Asia have banned capital punishment and signed a UN charter in the year 2007 to this effect. The US and several countries, including India, haven’t. It seems Europe is more respectful of human rights.
The Drug Mystery
The US government has refused to reveal the drug source for the killer Pentobarbital. Pentobarbital was earlier supplied by Lundbeck, a Danish company. However, the company has since banned the sale and supply of the drug to the US, for it is used solely for execution. Europe has also voiced objections over the company’s supply of these lethal drugs to the US for purpose of execution. Several European companies have since banned the sale and supply of their drugs to the US. Due to the shortage, Pentobarbital is now being supplied by local compounding pharmacies in the US. Whether this drug is being still used or any other, it is difficult to establish. On 10th September 2014, for example, the state of Texas executed Willie Trottie for murder. His attorneys argued on  the efficacy and expiry of the drug , however, it was effectively countered by the state. As a result, the source of the drug has not been revealed till date.
The state of Pennsylvania has also come under strong criticism concerning the issue on the source of drugs. By September 2014 several news agencies had filed lawsuits against the Government demanding to know drug sources.  A district judge sealed the source on the State’s request. The execution of Hubert L. Michael, scheduled, on 22nd September 2014 has since been called off due to “shortage” of lethal drugs. This will be Pennsylvania’s first execution since 1999.
‘Midazolam’, another drug used in two recent cases has caused widespread anxiety among the public. In September this year, Earl Ringo Jr, a native of Indiana was executed in Missouri. The state of Missouri lied about the drug cocktail used for his execution. The state  had promised not to use ‘Midazolam’- a drug frequently associated with botched up executions- but used it citing the reason that the drug was administered before the execution.
In the end, substantial risk of unnecessary pain is what it bogs down to. As stated in the case of Baze vs. Reez, the government needs substantial risk to prohibit the method of execution. They have had a significant number of cases like the ones above, where clearly there was substantial risk but the US government chose to ignore it simply because there was no measure of risk. In the nuances of law, these cases can only be practical and not theoretical examples, because there is no device yet to measure pain and risk.
So how does one define substantial risk? In the case of lethal injection, substantial risk is the number of chances an inmate could suffer while experiencing pain unnecessarily. And that would be because experimenting with new, mysterious, various and compounded drugs or administering a drug (Midazolam) and later using a lawful excuse as happened in the case of Missouri.
Should the U.S ban capital punishment? Or seek solutions for a lesser cruel procedure? I am thinking the latter. A solution which removes the doubt of botched up executions from people’s mind and doesn’t showcase capital punishment as inhumane. Solutions aren’t that hard to find in today’s world.

Carthik Venkat is a first year student of International Affairs in Jindal Global University

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