I have real concerns about the constitutionality of the current means of capital punishment here in Florida – and really, in most of the country today. And it’s not just me – many Death Penalty Qualified Defense attorneys here in Florida share the same concern regarding execution by lethal injection.
There is a strong argument that execution by lethal injection violates both the Florida Constitution and the U.S. Constitution. In the next series of scholarly posts that appear here on the blog every Friday, we’ll be looking at this issue.
The State and Federal Constitutions forbid foreseeable and unnecessary pain in the execution of an individual.
Much of the language that you will be seeing here is language that commonly appears in motions filed by counsel representing defendants who have been sentenced to death by the State of Florida. It’s a solid and sturdy argument against the use of lethal injection, and there are many attorneys, legal scholars, professors, sociologists, and other professionals, who stand on this position:
Both the Florida and the U.S. Constitutions forbid the infliction of unnecessary pain — that is, any pain that could reasonably be avoided — in the execution of a sentence of death. The courts have ruled that the infliction of a severe punishment by the state cannot comport with human dignity when it is unnecessary and nothing more than the pointless infliction of suffering. Furthermore, [p]unishments are held to be cruel when they involve . . . a lingering death. In re Kemmler, 136 U.S. 436, 447 (1890); see also Nelson v. Campbell, 541 U.S. 637, 125 S.Ct. 2117, 2122,158 L.Ed. 2d 924 (2004).
A punishment is particularly constitutionally offensive – and therefore, illegal — if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973). Such things as (1) the probable length of time the condemned remains conscious of the process; (2) the physical or psychological pain he or she suffers during this period; and (3) the time it takes for death to occur must all be taken into consideration in determining whether a means of execution violates the constitution. See Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994), aff’d, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996).
The Analogy of Death by Inhalation of Lethal Gas
In the Fierro case, execution by the inhaling of poisonous gas in a gas chamber was being considered. The court explained what it found to be a lingering death and foreseeable suffering:
[D]eath by this method [lethal gas] is not instantaneous. Death is not extremely rapid or within a matter of seconds. Rather . . . inmates are likely to be conscious for anywhere from fifteen seconds to one minute from the time that the gas strikes their face and during this period of consciousness, the condemned inmate is likely to suffer intense physical pain from air hunger; symptoms of air hunger include intense chest pains . . . acute anxiety, and struggling to breathe.
The” Three Drug Cocktail” Used in Florida Executions by Lethal Injection -it’s really three injections, not just one.
While much of the lethal injection process is shrouded in secrecy in this state, it has been determined that the Florida execution process involves the injection of numerous chemical substances:
1. The first substance administered is an anesthetic — sodium Pentothal, an ultrashort-acting barbiturate that causes the inmate to go to sleep for a very short time in ordinary doses.
2. Next, the person being executed is administered a neuromuscular blocking agent, pancuronium bromide, (brand name Pavulon), a curare-derived agent which paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition or sensation.
3. Finally, the condemned is administered the agent actually designed to cause death — potassium chloride, a chemical which causes death by cardiac arrest, an extremely painful process that activates nerve fibers in the veins as the drug proceeds through the prisoner’s system and ultimately interferes with the rhythmic contractions of the heart and stops its beating.
See generally Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says about Us, 63 Ohio St. L.J.63, 95-99 (2002) (discussing the chemicals used in lethal injection and their medical effects).
Therefore, far from producing rapid loss of consciousness and a humane death, this particular combination of chemicals chosen by the State of Florida causes the inmate to suffer an excruciatingly painful, protracted death.
The sequence of the administration of the chemicals, and failure to provide professional medical monitoring of the effects of the drugs, virtually assure that the actual pain and fear being suffered by the execution victim — the very things by which a court can judge whether a method of execution transgresses the constitutional standards — will go undetected. (See, Denno, 63 Ohio St. L.J. at 100.)
Next week, in part two of the series, the three drugs that make up the Florida execution cocktail are discussed in detail.