Lethal Injection by Experimentation
Doreen
Monk
The legal controversy
surrounding America’s capital punishment is a continuously evolving aspect of
the Criminal Justice system today. America has come a long way in terms of
States’ implementation of capital punishment, from executions by firing squad,
to executions involving the electric chair, and what most commonly attribute to
America’s capital punishment process today, lethal injection. Today,
thirty-five of the thirty-six states that retain the death penalty use lethal
injection as their primary mode to conduct an execution.[i] Of
the five principal execution methods discussed previously, lethal injection is
responsible for 1016 executions, accounting for over eight five percent of all
those sentenced to death on death row from 1977 to 2009.[ii]
The Eighth Amendment
prohibits the federal government from imposing cruel and unusual punishment for
committing criminal acts, and state
constitutions, including Florida, prohibit the infliction of cruel and unusual
punishment as well.[iii]
Execution methods in the
United States evolved the past several decades, down a path to find the most humane
execution method, so to speak.[iv] Two methods of lethal injection exist today, one of
which uses a three-drug protocol and another using one large dose of a
barbiturate.[v]
When
determining how to interpret cruel and unusual punishment, courts have
generally analyzed “the length and harshness” of the sentence.[vi] In Hudson
v. McMillian,[vii] the
U.S. Supreme Court also held that the “use of excessive physical force against
[a] prisoner may constitute cruel and unusual punishment, even though [the]
prisoner does not suffer serious injury.[viii] When prison officials use excessive force, and an
inmate suffers serious injury from that excessive force, there may be a cruel
and unusual punishment violation. But what about the types of drugs being used
to put to death such people who have committed horrific killings? How does that
play in and where does Florida currently stand with how cruel and
unusual our use of lethal injection drugs may be?
Officials
of the State Correctional Facility recently begun looking into the
implementation of a legal injection procedure that has never before been used
in Florida’s execution process.[ix] Some
could argue that this new protocol is allowing too much leeway for
experimentation. When you think “experiment” one might think, “We can try
this out. If it works, great, it doesn’t, oh well.” Proponents on the
other hand, argue it is a cheaper more effective protocol. But how does this
all play a part when implementing a drug that has no track record of success,
in a process that is supposed to be humane? The use of this new 3 drug protocol
brings to light the constant battle for humane executions while adhering to the
Eighth Amendment. So,
the next time you want to experiment, think of all the repercussions, good and
bad.
[i] Lethal Injection Stays Granted, Death
Penalty Information Center (last visited July March 31, 2017),
http://www.deathpenaltyinfo.org/lethal-injection-stays-granted.
[ii] Forms of Execution in the United
States, 1977-2009, ProCon (last visited March 31, 2017), http://deathpenalty.procon.org/view.resource.php?resourceID=001623
[iii] U.S. Const. amend. VIII; see also art. I,
§ 17, Fla. Const.
[iv] Katie Roth Heilman, Contemplating
"Cruel and Unusual": A Critical Analysis of Baze v. Rees in the
Context of the Supreme Court's Eighth Amendment "Proportionality"
Jurisprudence, 58 Am. U. L. Rev. 633, 643 (2009).
[v] See id.
[vi] See Steven Grossman, Proportionality
in Non-Capital Sentencing: The Supreme Court's Tortured Approach to Cruel and
Unusual Punishment, 84 Ky. L.J. 107, 107 (1996) (discussing
how courts determine whether a sentence is disproportionate to the crime
committed).
[vii] Hudson v. McMillian, 112 S.Ct. 995
(1992).
[viii] Id. at 995.
[ix] Florida Changes Lethal Injection Drugs,
http://miami.cbslocal.com/2017/01/05/florida-changes-lethal-injection-drugs/ (January 5, 2017).
