What Does the Future of Death Penalty Look Like?

Jan. 7, 2008— -- When Dr. Jay Chapman invented the three-drug method of lethal injection used in most states, it was supposed to be, he said, a more humane type of execution.

But, 30 years later, Chapman now says the three-drug cocktail, which an apparently divided Supreme Court considered on Monday, hasn't always worked out as planned.

In a few highly publicized executions, it appeared that inmates were not properly anaesthetized before the drugs stopped their hearts -- possibly leading to excruciating pain before they died.

"The way in which the drugs are administered has not been carried out as it should be," Chapman, known as the "father of lethal injection," told ABC News.

The Supreme Court case, which comes at a crucial time for capital punishment, has raised a difficult question: how much potential pain and suffering is acceptable when the state ends a person's life? There has been a de facto moratorium on most lethal injections since the court agreed to hear the case in September.

Kentucky Case

Two death row inmates in Kentucky have challenged the state's method of execution, now used in 35 of the 36 states that have the death penalty, saying the lethal drug cocktail can cause unconstitutionally cruel amounts of pain. The system uses three drugs that knock out, paralyze and then stop the heart of the condemned.

Though it is unclear what the court will do, several states have planned alternatives, including a move back to execution methods once condemned as barbaric.

Over the years, authorities have moved from hangings to firing squads to the electric chair to gas chambers to, most recently, lethal injections. Each change was supposed to be an improvement over the previous method, one that would make the process easier on the condemned inmate – and, perhaps more importantly in the eyes of legislators, on the public.

But, as states have tried to make executions as palatable as possible, some critics argue, they have landed on a method that may cause extreme pain to those condemned to die. Some medical experts, in fact, say the least cruel way to kill inmates may be by the very methods that have been rejected as too inhumane.

"One of the great ironies about capital punishment when you look at it historically is that when executions appear to be more humane, the application of the death penalty becomes less humane," said Dr. Jonathan Groner, the trauma medical director of Children's Hospital in Columbus, Ohio, who has testified as a death penalty expert.

Lawyers for the death row inmates advocate using a different type of lethal injection, an overdose of a single drug that should be painless, if unpleasant to watch. Some states have planned other alternatives: several states allow electrocutions, hangings and firing squads as alternatives to lethal injections, and more plan to institute those other methods if lethal injections are declared unconstitutional. The Supreme Court is not expected to declare lethal injections as a whole unconstitutional, but could strike down the current method of injections.

"That's the whole point with lethal injection – you have this veneer of medical respectability," Groner said. "Probably the most painless execution method is the guillotine…So why don't we do that? Because it's not very pleasant, it's not aesthetically pleasing….We feel it's okay to kill people as long as it doesn't look too ugly."

Drug Cocktail

The plaintiffs in the latest Supreme Court case, convicted murderers Ralph Baze and Thomas Bowling, say Kentucky's method of lethal injection creates an unnecessary risk of "terrifying conscious paralysis and suffocation" followed by "excruciatingly burning pain."

Kentucky, like most states, kills inmates using the three-drug protocol: sodium thiopental, an anesthetic that knocks out the inmate; pancurium bromide, which paralyzes the body; and potassium chloride, which stops the heart. The second drug, while medically unnecessary, stops the inmate from convulsing or making noise.

That combination, even critics acknowledge, can be painless. And lawyers for the state say safeguards are in place to make sure the drugs are administered properly. Kentucky has executed one prisoner by lethal injection, apparently without any problems.

But, critics argue, the drugs must be administered by people with proper training, which prison guards don't always have. If the anesthetic is not given correctly, the result could be a quietly agonizing death masked by the paralysis.

That appears to have happened in several widely reported cases. In Ohio, a condemned man raised his head midway through his execution to announce, "It's not working." In Florida, an execution took nearly half an hour and left the prisoner with chemical burns on his arm. A lawsuit filed recently by a prison guard in South Carolina described a "horrible death scene where the lethal syringe came out of the inmate's arm during execution."

"I think it is just ridiculous really that people would attempt to do this sort of thing without being properly trained," Chapman said.

Lawyers for the inmates advocate using the same method used to euthanize animals, an overdose of a barbiturate. That drug would be less painful, but probably slower and more unpleasant to watch. Groner said that the drug would cause a person to slowly turn blue and convulse as parts of their brain die. As an alternative, the inmates are asking for better monitoring of the three-drug process to ensure that the anesthetic is given properly

"The purpose of the second drug is appearances, really," said Richard Dieter, the director of the Center for Death Penalty Information. "It's not an anesthetic and it's not what kills you. It's about less twitching and shouting. That's where the state gets itself into some trouble – where it made paramount things that are just for appearances."

'No Painless Requirement'

The Supreme Court has never declared a method of execution unconstitutional, though in oral arguments on Monday, several justices appeared troubled by the current method of lethal injections.

But conservative justices, including Antonin Scalia, said states should not be barred from executing prisoners even if officials sometimes make mistakes in administering the drugs, since states have adopted procedures designed to avoid inflicting pain.

"There is no painless requirement" in the Constitution, Scalia said.

"We have approved electrocution, we have approved death by firing squad," he said, according to a transcript of the argument. "I expect both of those have more possibilities of painful death than the protocol here."

And Chapman, for one, is not particularly sympathetic to the inmates.

"I think that execution by the method we've set up is far too humane for many of these people," he said. "Because of the things I've seen they've done to their victims."