Is Execution by Lethal Injection Painful?

This month the Supreme Court heard arguments with respect to execution by lethal injection constitutes cruel and unusual punishment. Lethal injection has become the standard method of execution in the United States, Nevada being the only exception by relying on the electric chair.

Almost all jurisdictions which employ lethal injection rely on a “three drug cocktail.” First a drug is administered that renders the condemned prisoner unconscious; second, a drug is administered that paralyzes the prisoner; and third, road salt is injected into the blood stream to stop the heart.

If the inmate is unconscious when the last drug is administered he or she will feel no pain. The concern arises form the fact that the first drug will wear off and the inmate will be conscious when the third drug is administered. In this eventuality the condemned man or woman will experience a horrible, excruciating death. Apparently the possibility of waking up is not remote. There is some anecdotal evidence this has actually happened in executions. Even with a trained anesthesiologist present it is not uncommon for people to awake while under the surgeon’s knife, (although due to the effect of another drug, they rarely have any recollection of the event), and executions are not conducted by medically trained individuals. Nor is the drug used to induce unconsciousness intended to have a long term effect such as the drugs administered during a surgery. The point is often made that there is no purpose to paralyzing the condemned prisoner so if there were not a tacit awareness that he or she might be conscious when the third drug is administered. Ostensibly the purpose of the second drug is to prevent “death throes.” In most states it is illegal to put animals “put down” by this method. The way animals are generally “put asleep” today is by overdosing them with barbiturates and this is the method for which most opponents of the “three drug cocktail” advocate. There is little chance that the Supreme Court will deem the “three drug cocktail” unconstitutional. Several of the justices will note that the framers of the constitution, who did not consider execution by hanging to be cruel and unusual, would hardly have deemed lethal injection cruel. They will also note the Constitution prohibits cruel and unusual punishment; it does not guarantee that executions must be painless. Finally, the Court will express concern that if the current procedure is considered cruel and unusual any procedure supplanting it will also be subject to a similar attack due to the inherent difficulty in guaranteeing a painless death. By late summer the execution chambers in Texas will be busy again and the current lethal injection protocol is here to stay for the time being.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.