Law Report
US: Should not resume lethal injections
Supreme Court Decision Not a Green Light for Executions
The United States should not resume execution by lethal injection, despite a US Supreme Court decision that upheld its constitutionality, Human Rights Watch said today.
In Baze v. Rees, the US Supreme Court ruled on April 16, 2008 that lethal injection as practiced by the state of Kentucky does not violate the US Constitution's prohibition on cruel and unusual punishments. But in an opinion for three members of the court, Chief Justice John Roberts cautioned that if there is a “feasible, readily implemented” alternative to lethal injection that “in fact significantly reduce[s] a substantial risk of severe pain,” a state's refusal to adopt such procedures may result in cruel and unusual punishment.
“This is not a green light for executions in Kentucky or any of the 36 lethal injection states,” said David Fathi, US Program director at Human Rights Watch. “States that execute prisoners have an obligation under human rights law to do it as humanely as possible, and the lethal injection protocol fails that test.”
In a 2006 report, Human Rights Watch found that death penalty states had paid little or no heed to the risk that lethal injection may cause unnecessary pain and suffering. In fact, lethal injection poses a significant risk that the condemned prisoner will suffer excruciating pain, yet be unable to move or cry out because of a paralytic drug that is administered as part of the execution protocol.
“The combination of drugs used in lethal injections is not even approved for veterinary use in many states,” said Sarah Tofte, a Human Rights Watch researcher and co-author of the report. “The US takes more care in euthanizing dogs and cats than in putting a human being to death.”
Human Rights Watch filed an amicus curiae (friend of the court) brief in Baze, arguing that both the US Constitution and international law require death penalty jurisdictions to make every effort to minimize pain and suffering in the execution process.
On April 9, Kentucky released a heavily redacted version of its lethal injection protocol, which was previously not available to the public. The 16-page protocol offers no guarantee that the lethal chemicals will work properly or that the condemned prisoner will not suffer excruciating pain. For example:
If it appears to the warden that the prisoner is not unconscious within 60 seconds after delivery of the first drug, sodium thiopental, the warden is to order a second administration of the drug from a backup intravenous line. It is unclear how prison wardens, who are not required to have medical training, will reliably determine whether the prisoner is unconscious. It is also unclear how the warden will safeguard the second administration of the drug from the problems that occurred in the first administration.
If the prisoner is still alive 10 minutes after all three drugs have been administered, the warden is to order that a second round of drugs be given. The protocol adds, “this process shall continue until death has occurred.” The prospect of a prisoner being alive 10 minutes or longer after the lethal chemicals have been administered raises serious concerns that the prisoner may suffer prolonged and excruciating pain.
Methods of execution in the United States have come under increased scrutiny in recent months. In February 2008, the Nebraska Supreme Court ruled that electrocution, the sole method of execution used in that state, violates the Nebraska constitution. “Condemned prisoners must not be tortured to death, regardless of their crimes,” the Nebraska court said.
Human Rights Watch urged the US to continue the moratorium on executions that has been in place since the US Supreme Court agreed in September 2007 to hear the Baze case.
“The existing stay on executions shows the US can live without the death penalty,” Fathi said.
Source: Human Rights Watch.
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