Defining Cruel and Unusual Punishment in the Context of Evolving Standards of Decency

On December 17, 2007, New Jersey Gov. Jon Corzine signed into law a bill that replaced the death penalty with life imprisonment without the chance of parole. The NJ Death Penalty Study Commission Report found capital punishment "inconsistent with evolving standards of decency".

However, evolving is not for everyone, as 35 states continue to ignore the evidence that the three-drug cocktail injected into inmates to execute them is anything but humane. Apparent to witnesses and documented by post-mortem evidence such as photographs and autopsy reports, prisoners suffer severe pain for a number of reasons. For example, execution personnel are unable to insert the IVs, leading to protracted and repeated attempts to do so, or even “cutdowns,” which are surgical incisions designed to locate veins under the skin. Another example is when one or both IVs fail, causing the drugs to be injected into the tissue surrounding the vein. And sometimes the administration failure is so complete that the inmate is not paralyzed and is able to express pain.

What's even worse is that some executions may be botched in a manner that renders the pain suffered by the inmate invisible to witnesses. Pancuronium bromide, a neuromuscular blocking agent that paralyzes all of a body’s voluntary muscles, including the lungs and diaphragm, and given enough time, will cause death by asphyxiation, hides evidence of consciousness and makes it impossible for the inmate to convey the fact he is experiencing suffocation from the pancuronium and searing pain from the potassium chloride. An inmate may receive sufficient pancuronium to paralyze but insufficient thiopental to cause surgical anesthesia.

All of this can be avoided by using a single barbiturate that causes no pain and can be given in a large enough dose to cause death as we do when we put animals to "sleep", yet the Supreme Court still ruled the aforementioned process does not qualify as cruel and unusual punishment.

Excerpt from Execution by lethal injection: A quarter century of state poisoning:

In lethal injection executions, prisoners are commonly injected with massive doses of three chemicals: sodium thiopental (also known by the trade name Pentothal) to induce general anaesthesia; pancuronium bromide to cause muscle paralysis, including of the diaphragm; and potassium chloride to stop the heart. Doctors have expressed concern that if inadequate levels of sodium thiopental are administered (for example, through incorrect doses of thiopental, faulty attachment of the line, or precipitation of chemicals) proper anesthetic depth will not be achieved or the anaesthetic effect can wear off rapidly and the prisoner will experience severe pain as the lethal potassium chloride enters the veins and he or she goes into cardiac arrest. Due to the paralysis induced by pancuronium bromide, they may be unable to communicate their distress to anyone.

Such issues have led to these chemicals – used on humans as punishment – being barred from use on animals in euthanasia. The professional body representing the USA’s veterinary surgeons has argued that the use of pancuronium bromide is unacceptable for euthanasia of domestic pets.The American Veterinary Medical Association has taken the view that a mixture for euthanasia of animals by sodium pentobarbital should not include a paralysing agent and that humane killing of animals by potassium chloride requires prior establishment of surgical plane of anaesthesia characterised by "loss of response to noxious stimuli"(14) by a competent person.(15) The use of pancuronium bromide in animal euthanasia has since been banned in individual US states including Tennessee(16). In September 2003, a new law came into force in Texas prohibiting the use of pancuronium bromide in the euthanasia of cats and dogs. Texas is the US state which uses lethal injection the most frequently for humans.

So, what does it take to qualify as cruel and unusual punishment under the law? Federal and state courts have generally analyzed two aspects of punishment: the method and the amount.

The Court also included that the Eighth Amendment must "draw its meaning from the evolving standards of decency that mark the progress of a maturing society." And in 1958, (Trop v. Dulles) the courts determined that defendant need not suffer actual physical injury or pain before a punishment will be declared cruel and unusual.

Yet, Romell Broom will face execution next week following a botched lethal injection, on Tuesday, when technicians spent two hours trying to access one of Broom's veins to take a needle. Broom, even tried to help prison officers find a suitable vein by moving around and flexing his muscles. Eventually, Broom, overwhelmed, lay on his back and covered his face with both hands to cover his tears. Prison director Terry Collins later thanked the condemned man for what he said was the respect he showed toward the execution team and for the way he endured the ordeal. It doesn't get any more cruel and unusual than this.

"This is virtually unprecedented. The public in the US are increasingly jaded about the death penalty. There is evidence of innocent people executed, prosecutors sleeping with judges and being ignored, failed executions. At some point enough is going to be enough and even people who support the death penalty are going to let it go". -- Richard Dieter DPIC director

And voted least likely to evolve, is Texas, notorious for it's callous disregard for life. Ask Cameron Todd Willingham. Oh wait...Texas killed him. Unemployed at the time of his arrest, Willingham had to rely on public defenders who brought only one witness to the stand. It took the jury one hour to decide his guilt. Since his death, the evidence proving him innocent has only continued to increase. Cameron Todd Willingham was executed by the state of Texas for a crime that he didn't commit.

Move over George W. because blood thirsty Gov. Rick Perry has already presided over 200 executions between taking office in 2001 and June of this year. During that time, Texas executed three times more people than the next three states combined had executed since 1976.

Remember Judge Sharon Keller? The Texas judge who said, "We close at 5" and refused to accept an appeal 20 minutes after 5 PM on Sept 25, 2007 by lawyers representing a man to be executed that night, in order to make her 5:30 hair appointment? Well, she said she would do the same thing all over again when questioned on the witness stand at her misconduct trial. And that's not Keller's only legal controversy, her failure to list millions in personal assets on a financial disclosure form also came to light recently.

Then, there is the capital murder case of Charles Dean Hood, where the Texas courts ruled that a man facing the death penalty for murder will not get a new trial despite the fact that the prosecutor on the case and the judge who tried the case were at the time involved in a romantic affair.

One thing is for sure, the known incidence of botched executions understates the actual incidence because many states fail to record vital signs or collect post-mortem data that could provide clues as to whether executions were humane.