Feeling the Needle of the Supreme Court Decision on Lethal Injections

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In April, the Supreme Court ruled that executing inmates on death row by lethal injection does not constitute cruel and unusual punishment under the Eighth Amendment. Ten people have since been executed by lethal injection — a method involving a three-drug cocktail. Though the nation's 36 death penalty states keep their protocols secret, the lethal injection method is generally similar throughout those states. The first drug, sodium thiopental, is used as an anesthetic which puts the inmate to sleep. The second drug is pancuronium bromide, which paralyzes the entire muscle system. Using this drug allows the third drug, potassium chloride, to work in a considerably shorter time. This last drug is what ultimately stops the person's heart.

Problems and botched attempts at using the lethal injection method are well documented and part of why the method was challenged in the courts. They include missing veins or incorrect doses of the chemicals which can result in an inmate waking up to extreme pain in the middle of the process.

Some problems stem from the fact that medical ethics preclude doctors from participating in the execution process. While doctors pronounce inmates dead, technicians and orderlies are the ones that place inmates on gurneys, strap them down, and administer the deadly drugs. On many occasions, these prison employees have taken up to 30 minutes to locate veins or they miss them completely. This is precisely what happened in the state of Florida.

Ángel Díaz was convicted for killing the manager of a Florida strip club in 1979. At his execution in December of 2006, the technician that was injecting Díaz thrust the needle clear through his vein and into the soft tissue of his muscle. He suffered severe chemical burns on his arm, and throughout his execution witnesses said they saw his face grimacing, and heard him ask at one point, "What's going on?" Díaz was pronounced dead 34 minutes after the procedure began, more than double the time an execution normally takes.

After the botched injection, Florida suspended all executions according to an order given by then Governor Jeb Bush. This turned out to be a fortuitous for Mark Dean Schwab, a death row inmate since 1992. In 1991, Schwab was released after only serving three years of an eight-year sentence for aggravated rape. A mere month after his early release, Schwab kidnapped, raped, and murdered Junny Rios-Martinez, age 11. Schwab's crime was so heinous that it led to the Junny Rios-Martinez Act of 1992 which prohibits sexual batterers from receiving early release from prison in Florida. Since 2006, Schwab's fate hung in the state court, and later even the Supreme Court.

A year and a half after the botched Díaz execution, the ban on state execution was lifted, and the new Governor of Florida, Charlie Crist, signed Schwab's death warrant. Schwab was to be executed on November 15, 2007. The night before that, a rollercoaster of events began to unfold. First Schwab requested a stay of execution, which a federal judge granted. The following day, the date of execution, the Circuit court ruled that the execution, scheduled for 6:00 PM that evening, should proceed. However, the United States Supreme Court blocked all executions across the country that day, pending the appeals of two Kentucky inmates who claimed that the cocktail used in a lethal injection constituted cruel and unusual punishment.

Schwab escaped temporarily while the highest court of the nation deliberated. Chief Justice Roberts, writing in the controlling opinion in Baze v. Rees, stated, "Subjecting individuals to a substantial risk of future harm can be cruel and unusual punishment if the conditions presenting the risk are 'sure or very likely to cause serious illness and needless suffering'" The court explained when something constitutes cruel and unusual punishment; that is when conditions are very likely to cause unnecessary pain and suffering. Furthermore, Justice Roberts set a very high threshold for inmates looking to challenge the execution method. Inmates must show that there is a "substantial risk of serious harm…an objectively intolerable risk of harm." Both the risk and the harm must be serious and unacceptable from an objective point of view. Therefore a single mishap or accident does not constitute cruel and unusual punishment, nor does it indicate substantial risk.

Justice Ginsburg dissented, claiming that there are a great many safeguards that the state can put into effect when executing inmates. Among the states that do provide safeguards, Justice Ginsburg noted Florida. Specifically, she mentioned the ever-important pause between the first drug in the cocktail, the anesthetic, and the second paralyzing drug, where the technicians test the inmate's consciousness. If there are any doubts as to the condition of the inmate, the waiting medical team is summoned for a consult.

With this important decision, Schwab's execution was rescheduled for July 1st, 2008. Days before the execution was scheduled, Schwab's attorneys made one final appeal, claiming that the chemical cocktail used in Florida violates the Eighth Amendment ban on cruel and unusual punishment. More importantly, the attorneys pointed to the fact that during recent rehearsals, the execution team had a 30 percent failure rate, meaning botched injections that could cause prolonged pain, undue suffering, and delayed death. Schwab's appeal was denied, because the claims amounted to the same ones the Supreme Court had already denied.

On July 1st, 16 years to the date after his sentencing, Mark Dean Schwab was executed in Florida. He was pronounced dead at 6:15 PM, without any delay or mishap.


Example of Post-Furman Botched Executions

Supreme Court Allows Lethal Injection for Execution

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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.