DEBATE BAZE-D AND CONFUSED: WHAT’S THE DEAL WITH LETHAL INJECTION? On January 7th, the Supreme Court heard oral arguments in the case of Baze v. Rees, which asks the Justices to examine the constitutio- nality of Kentucky’s lethal injection methodology. As the Court deli- berates over the issues involved, an informal nationwide moratorium on lethal injections has been established. In this Debate Professors Alison J. Nathan, of Fordham University, and Douglas A. Berman, of The Ohio State University, tease out the legal, political, and practical issues that the Court faces as it addresses Baze. In her Opening, Professor Nathan critiques the irrationality of the three-formula lethal injection procedure used by Kentucky and many other states. Professor Nathan writes that “lethal injection as perva- sively practiced in the United States today is the result of a historical accident, not scientifically informed deliberation.” She contends that the sort of democratic reform that has been the catalyst for legislative changes in execution procedures in the past has been stymied by “le- thal injection’s peculiar history, attendant secrecy, and protocol in- volving the use of [a] pain-masking paralytic drug.” She concludes by arguing that “[i]n this context of non-transparency, it is distinctly the role and responsibility of the judiciary, led by the Supreme Court, to scrutinize the practice of lethal injection and its history.” Professor Berman agrees that “the development and administra- tion of lethal injection protocols have been haphazard and sloppy.” However, his concern is principally focused on why the lack of a dem- ocratic reform movement has failed to raise the consciousness of the nation. He contends that “three critical practical and political reali- ties” explain the absence of a national backlash: in sum, 1) no hu- man-administered death penalty system can be perfect; 2) few Ameri- cans care to make a perfect system; and 3) most Americans are “blissfully ignorant” of any such “imperfections.” Through his “real- politik” lenses, Professor Berman remains skeptical that the Justices will be able to rise above “the broader practical and political realities that surround the modern administration of capital punishment [and help] ensure that the machinations of death . persist.” (312) 313 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 156: 312 PENNumbra OPENING STATEMENT Lethal Injection’s Known Unknowns Alison J. Nathan† The United States Supreme Court has recently heard oral argu- ment in the case of Baze v. Rees, a constitutional challenge to the lethal injection procedures that Kentucky uses to execute death row in- mates. Kentucky’s lethal injection formula is the same employed by almost every death penalty state in the country. As a result, the day after the Court granted certiorari in Baze, I argued that because the Supreme Court is considering the standard by which such challenges must be judged, for the sake of even-handed and deliberative justice, all lethal injection executions across the nation should be stayed pending the Court’s decision in Baze (see http://jurist.law.pitt.edu/ forumy/2007/09/pausing-machinery-of-death-supreme.php). One execution did go forward in Texas on the same day that Baze was granted, apparently as a result of the refusal by the Chief Justice of the Texas Court of Criminal Appeals to allow the twenty-minute late filing of the condemned man’s stay request. Since that time, however, every scheduled execution (nineteen as of the time of this writing) has been temporarily stayed by the Supreme Court, lower federal courts, state courts, or governors. This national pausing of the machinery of death has garnered significant press attention and some controversy, even leading a few commentators to suggest that lethal injection challenges are, at base, nothing more than a death-row delay tactic. This is a sig- nificant error. How states execute convicted defendants is an issue that implicates important aspects of governmental transparency and democratic reform, and should be a serious concern both to those who support the death penalty and those who oppose it. What we know about how states and the federal government currently execute people in the United States is deeply troubling—troubling enough that the Supreme Court has involved itself in the controversy. But the real danger of lethal injection as currently practiced lies in what we do not know. A number of historical and structural factors have coa- † Visiting Assistant Professor of Law, Fordham University School of Law. Professor Na- than is counsel of record for an amicus curiae brief in support of the petitioners in Baze v. Rees, which she filed on behalf of the Louis Stein Center for Law and Ethics at Ford- ham University School of Law. 2008] BAZE-D AND CONFUSED 314 lesced to shroud the administration of lethal injection in secrecy. These factors have entrenched, rather than cured, a needlessly cruel practice. This lack of transparency must change, and it is the exis- tence of constitutional judicial review that will ensure that it does. One thing we know for sure about lethal injection is its macabre history. As shown by the research of one of the leading experts in this field, Professor Deborah Denno of Fordham University School of Law, lethal injection as pervasively practiced in the United States today is the result of a historical accident, not scientifically informed delibera- tion. The genesis of today’s method of lethal injection can be traced to 1976, the year the Supreme Court decided Gregg v. Georgia, 428 U.S. 153 (1976), and ended the nine-year execution hiatus that had begun in the period leading up to the 1972 case of Furman v. Georgia, 408 U.S. 238 (1972). After almost a decade without an execution, intense public scrutiny accompanied the preparations for the post-Gregg ex- ecutions. In this context, and in order to help maintain public sup- port for the death penalty, some state legislators scrambled to find a more humane substitute to the viscerally brutal and painful electric chair or gas chamber, the two methods that previously had gained na- tional dominance but were facing increasing public scrutiny and criti- cism. Legislators in Oklahoma moved first. Seeking guidance on how to carry out a potentially more humane execution, two Oklahoma state senators turned to the state’s chief medical examiner, Dr. A. Jay Chapman. Although Dr. Chapman con- ceded that he lacked relevant training or expertise—stating at the time that he “‘was an expert in dead bodies but not an expert in get- ting them that way,’” Deborah W. Denno, The Lethal Injection Quan- dary: How Medicine Has Dismantled the Death Penalty, 76 FORDHAM L. REV. 49, 66 (2007)—he conjured up a procedure that would become the basis for lethal injection protocols nationwide. The Oklahoma legislators did not receive input from experts, did not conduct or commission any studies, and failed to consider the foreseeable admin- istrative difficulties and dangers of Dr. Chapman’s proposed proce- dure. Nevertheless, in 1977, Oklahoma’s legislature adopted Dr. Chapman’s method and delegated important details—what specific drugs to use, what dosage to administer, who would administer the drugs and how—to unqualified prison officials who made administra- tive decisions free from public scrutiny and oversight. After further consultation between Dr. Chapman and state prison officials, Okla- homa became the first state to adopt a three-drug lethal injection pro- tocol—a short-acting anesthetic, a paralyzing agent, and a heart- stopping drug—as its preferred method of execution. Texas followed 315 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 156: 312 PENNumbra immediately afterwards, becoming the first state to actually carry out a lethal injection execution, which it did in 1982, using the three-drug protocol. Despite the inadequate origins of Oklahoma’s lethal injection protocol, a ripple effect soon occurred. State after state followed Ok- lahoma’s lead, uncritically borrowing its new three-drug formula and delegating important details to state prison officials who lacked perti- nent experience and knowledge. By 2002, thirty-seven states had switched to lethal injection, with all but one state employing Dr. Chapman’s original three-drug formula. Yet none of these states en- gaged in any additional medical or scientific study of the method they were adopting. Historical accident (or what sociologists would call a “cascade to mistaken consensus”) explains far better than science or medicine the current ubiquity of the three-drug protocol. We also know, as a result of information just beginning to emerge, that there have been seriously flawed lethal injection executions. For example, in May of 2007, an Ohio inmate named Christopher Newton appeared to be suffocating alive during parts of an execution that lasted almost two hours. Newton’s botched execution came one year after a similarly controversial execution in Ohio that lasted approx- imately ninety minutes and caused the state to reexamine its execu- tion procedures. This execution was sufficiently gruesome that the brother of the victim, who witnessed the execution, has gone on record condemning the lethal injection process as unnecessarily cruel. As another example, it took the state of Florida thirty-four minutes to execute Angel Diaz in 2006. During that time Diaz was flailing, gasp- ing for air, grimacing, and struggling to breathe. A postexecution in- vestigation concluded that Diaz was likely not properly anesthetized during the execution. According to the Florida Supreme Court, the execution “raised legitimate concerns about the adequacy of Florida’s lethal injection procedures and the ability of the [Department of Cor- rections] to implement them.” Lightbourne v. McCollum, No. SC06- 2391, 2007 WL 3196533, at *16 (Fla. Nov. 1, 2007). Given the inci- dences of error-prone and flawed executions, it is unsurprising that the three-drug protocol is forbidden for use in animal euthanasia by most states.