The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty
Fordham Law Review, Vol. 76, No. 1, pp. 49-128, 2007
81 Pages Posted: 1 May 2007 Last revised: 27 Mar 2011
Date Written: March 25, 2011
On February 20, 2006, Michael Morales was hours away from execution in California when two anesthesiologists declined to participate in his lethal injection procedure, thereby halting all state executions. The events brought to the surface the long-running schism between law and medicine, raising the question of whether any beneficial connection between the professions ever existed in the execution context. History shows it seldom did. Decades of botched executions prove it.
This Article examines how states ended up with such constitutionally vulnerable lethal injection procedures, suggesting that physician participation in executions, though looked upon with disdain, is more prevalent - and perhaps more necessary - than many would like to believe. The Article also reports the results of this author's unique nationwide study of lethal injection protocols and medical participation. The study demonstrates that states have continued to produce grossly inadequate protocols that severely restrict sufficient understanding of how executions are performed and heighten the likelihood of unconstitutionality. The analysis emphasizes in particular the utter lack of medical or scientific testing of lethal injection despite the early and continuous involvement of doctors but ongoing detachment of medical societies. Lastly, the Article discusses the legal developments that led up to the current rush of lethal injection lawsuits as well as the strong and rapid reverberations that followed, particularly with respect to medical involvement.
This Article concludes with two recommendations. First, much like what occurred in this country when the first state switched to electrocution, there should be a nationwide study of proper lethal injection protocols. An independent commission consisting of a diverse group of qualified individuals, including medical personnel, should conduct a thorough assessment of lethal injection, especially the extent of physician participation. Second, this Article recommends that states take their execution procedures out of hiding. Such visibility would increase public scrutiny, thereby enhancing the likelihood of constitutional executions.
By clarifying the standards used for determining what is constitutional in Baze v. Rees, the U.S. Supreme Court can then provide the kind of Eighth Amendment guidance states need to conduct humane lethal injections.
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