Monday, January 10, 2011

Unevolved and Indecent

"Evolving standards of decency" is a phrase used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  The Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society."  This standard has always struck me as optimistic; as an acknowledgment that, while we may not be there yet, some day our society will evolve to the point where the death penalty will be unacceptable.  Unfortunately, the Supreme Court is the arbiter of our evolution, and until the composition of the court changes -- or state laws change -- we are not likely to evolve much further.

In the meantime, we are left with government officials acting indecently.  I have previously written about the State of California's frenzied scramble to buy one of the lethal injection drugs, sodium thiopental, for which there is a nationwide shortage.  As I detailed in Lethal Lifesavers, the documents obtained by the dogged efforts of ACLU of Northern California reveal prison officials acting like drug addicts in desperate need of a fix.  To find the drug they needed to carry out executions they called almost 100 hospitals without success, and sought the drug from Texas authorities who refused to part with their ample stock.  Then they "scoured the globe," even searching for a source in Pakistan.  They ultimately found a found a trading partner in Arizona, who agreed to give them 12 grams.  But this was not nearly enough to satisfy their craving.  New documents show that California subsequently bought 521 grams from Great Britain, enough for 80 executions, at a cost of over $36,000. 

As recently reported, the FDA has released the British shipment without determining its "identity, safety, effectiveness, surety or any other characteristics."  Apparently, the federal government believes it has no duty to "review or approve products for the purpose of lethal injections."  According to the FDA, their role is to review the drug only for medical use.  This makes no sense.  As the ACLU's Natasha Minkser states, sodium thiopental is "used as a medical drug in the execution process," so the federal agency should be required to review the labeling, purity and effectiveness of all supplies. 

Sodium thiopental is the first of three drugs administered in executions.  It is a barbiturate that is supposed to render the inmate unconscious.  A second drug is designed to cause muscle paralysis and respiratory arrest.  The third drug is supposed to stop the heart.  There are many problems with this protocol, the most serious of which is that by using a paralytic agent, there is no way to tell if the barbiturate is working effectively.  In other words, if the inmate is paralyzed it can't be discerned whether he (or she) is truly unconscious or is simply unable to scream out in pain.  Now adding to this risk is the potential use of a barbiturate that has not been tested by any authority to ensure it will work as it is meant to.

This does not concern the executioner.  The FDA has deferred to law enforcement, but California prison officials do not believe they need to test the drugs for effectiveness either.  According to a prison spokesperson, "All our efforts to acquire the drug, and any drug for lethal injection, were done in accordance with state and federal law."  This is a question that will ultimately be determined in court.  In any event, the state and federal officials involved in this grizzly endeavor have a long way to evolve.

[Related posts:  The Year in DeathLethal Lifesavers, Evolving Justice, Hide and Seek, Drug Problem, Banality of Evil, Tough on Crime]

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