There is No Civilizing the Death Penalty

by CHRISTOPHER BRAUCHLI

"Hanging was the worst use a man could be put to."

Sir Henry Wotton,
The Disparity Between Buckingham and Essex

The death penalty has once again made news. October 10 the European Union marked the first World Day Against the Death Penalty by calling for the worldwide abolition of the death penalty. The United States is in the company of, among others, Iran and Nigeria in using the death penalty to modify people’s behavior. It is, of course, more civilized in its use than Nigeria so some may dislike lumping the two together. On the other hand, dead is dead.

The difference between the two countries was highlighted by Nigeria’s Amina Lawal, a single mother sentenced to death for having had a baby out of wedlock. She was to be executed in a far less humane method than that employed in places such as Tennessee. She was to be buried up to her neck in sand and pelted with stones until dead. (Nigeria’s highest court overturned her sentence not because it was inhumane but because she had not been observed when conceiving the child and was not given adequate time to understand the charges against her.)

Although stoning is not favored in the United States, a report in the New York Times on October 1 discloses that contrary to popular belief, people who are executed by lethal injection are not as happy as the drugs they are given cause them to appear.

Lethal injection was introduced because death by gassing was considered unpleasant and resulted in occasional misbehavior by those being executed. The most notable case occurred in Arizona when the recipient of the gas made obscene gestures at the onlookers while dying, thus spoiling the event for the onlookers. Shortly thereafter Arizona switched to lethal injection. What we learned on October 7 is that lethal injection is not as pleasant as all but those having first hand acquaintance with it, thought.

People who have watched someone being killed by lethal injection have observed that those being sent on their way appear as tranquil as those in a hospital room whose lives are being preserved by the most modern techniques known to civilized people. That is in part because one part of the cocktail that is administered to the soon to be departed is the chemical, pancuronium bromide, known by the trade name, Pavulon.

Pavulon paralyzes the skeletal muscles but not the brain or nerves. Thus, people receiving it cannot move or speak nor can they let onlookers know that contrary to appearances, what is happening is no fun at all. A Tennessee judge, Ellen Hobbs Lyle, commenting on the use of the drug in an appeal brought by someone on death row in that state, said Pavulon has no "legitimate purposes." Writing about the drug’s use she said: "The subject gives all the appearances of a serene expiration when actually the subject is feeling and perceiving the excruciatingly painful ordeal of death by lethal injection. The Pavulon gives a false impression of serenity to viewers, making punishment by death more palatable and acceptable to society."

Sherwin B. Nuland, a professor in the Yale medical school when told of use of the drug expressed surprise. He said: "It strikes me that it makes no sense to use a muscle relaxant in executing people. Complete muscle paralysis does not mean loss of pain sensation." He said, in effect, that there were other ways of humanely killing people. I’m sure he’s right, but there are 28 states that use the same cocktail in the execution chamber as Tennessee. The first drug administered is sodium thiopental, used to induce anesthesia for a short period. It is followed by pancuronium bromide which paralyzes the patient and finally potassium chloride which stops the heart and is said to cause excruciating pain if the victim is conscious.

It would be easy to simply condemn Tennessee for being a state that lacks respect for human life. That would be a mistake. Tennessee has a law that is known as the "Nonlivestock Animal Humane Death Act." Nonlivestock is defined to include pets, captured wildlife, exotic and domesticated animals, rabbits, chicks, ducks and potbellied pigs. Tennessee law says: "A nonlivestock animal may be tranquilized with an approved and humane substance before euthanasia is performed." The law then provides that "any substance which acts as a neuromuscular blocking agent, or any chamber which causes a change in body oxygen may not be used on any nonlivestock animal for the purpose of euthanasia.

The unfortunate things, as far as those facing the executioner’s needle in Tennessee is concerned, is that humans are excluded from the definition of "nonlivestock animals." Thus, the requirement for a humane execution that is imposed on those killing animals, is not imposed on those killing humans. Tennessee is not alone in being more concerned about kind executions of nonlivestock animals than humans.

The American Veterinary Medical Association has come out against using the product when euthanizing animals when it is used alone or in combination with sodium pentobarbital. According to a 2000 report from the Association, "the animal may perceive pain and distress after it is immobilized." That might almost be enough to convince some people that what’s good for the potbellied pig should be good for a human. On the other hand the potbellied pig is killed for what it is rather than what it did. That probably explains the more humane treatment.

CHRISTOPHER BRAUCHLI is a Boulder, Colorado lawyer. His column appears weekly in the Daily Camera. He can be reached at: brauchli.56@post.harvard.edu

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