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).

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