CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, May 19, 2008

Why Not One Drug for Lethal Injections?

The New York Times reports that states are rescheduling executions now that the Supreme Court has ruled in Baze v. Rees that the three drug cocktail used by states does not violate the 8th Amendment's prohibition against cruel and unusual punishment.

The Fourth Circuit has a new challenge on its hands.In Emmett v. Johnson, Emmett is arguing that the way in which Virginia administers the drugs is unconstitutional because unlike Kentucky and other states, it doesn't allow enough time for the first drug, which anesthetizes and renders the inmate unconscious, to take effect before administering the other two drugs which cause pain. To make it worse, when there seems to be a problem with the first drug, rather than giving more of the drug, Virginia increases the doses of the pain-causing second and third drugs, but not the first.

In its brief (available here pdf) Emmett's lawyers make the argument that there is a painless way to kill someone with just one drug: [More...]

the best and most feasible alternative procedure to eliminate this risk is to move to a protocol that uses only a single, massive dose of thiopental, pentobarbital, or some other barbiturate to cause death.

While the issue was raised in Baze, the Supreme Court refused to consider it because it hadn't been raised or considered by the lower courts in Kentucky.

As to the three drugs,

Under the three-drug method, the first drug is designed to anesthetize the inmate, the second to paralyze him, and the final drug to stop the heart and bring on death. That is the general approach used by all but one of the states that still have the death penalty. [Mark Godsey]

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