This month, the question is raised once again about what the condemned actually experience when undergoing lethal injection, and whether or not this constitutes cruel and unusual punishment. It appears that the executioners’ perspective on what is taking place and those of the execution witnesses may be far, far different. Read, “Executioners sanitized accounts of deaths in federal cases,” written by Michael Tarm and published by the Associated Press on February 17, 2021.
Pain and Cruel and Unusual Punishment
Of course, as Mr. Tarm points out and as we have discussed earlier, SCOTUS has made it clear that the U.S. Constitution does not provide for a pain-free execution. The condemned can experience pain without it being in violation of constitutional protections against cruel and unusual punishment. Read, Painful Executions are not Cruel and Unusual Punishment under the Eighth Amendment.
It’s also important to point out that different lethal executions use different drugs, alone or in combination. The federal executions involved pentobarbital. Used alone.
Pentobarbital has been criticized for use in executions because if it is improperly administered, it will cause pain. And no one is sure its intensity. Read, “Why the Justice Department’s Plan to Use a Single Drug for Lethal Injections Is Controversial,” written by Josiah Bates and published by Time Magazine on July 29, 2019.
We’ve discussed pentobarbital before. You may recognize it as the drug that veterinarians commonly use to euthanize beloved pets. Read, Pentobarbital Supply and Demand for Execution Drugs; Pentobarbital Shortage in Death Penalty Executions: The Continuing Problem of Finding Drugs for Lethal Injections; and Lethal Injections and Compounding Pharmacies: Why These Are Very Bad Sources of Supply.
How is pentobarbital so painful as to constitute cruel and unusual punishment?
The argument, as described by Justice Sotomayor in her recent dissent in Barr v. Lee, 140 S. Ct. 2590 (2020), is as follows (emphasis added):
In light of this change, respondents alleged that the Government’s planned use of pentobarbital could result in needless pain and suffering in violation of the Eighth Amendment. Among other things, respondents proffered expert evidence that the majority of those injected with pentobarbital suffer flash pulmonary edema, which can lead to a sensation akin to drowning and “`extreme pain, terror, and panic.'” Id., at 10a.