A Quandary For the Supreme Court In Death Penalty Case

The US Supreme Court is hearing arguments in Baze v. Rees
( href="http://www.washingtonpost.com/wp-dyn/content/article/2008/01/07/AR2008010700618.html">WaPo,
href="http://www.nytimes.com/2008/01/07/washington/07cnd-scotus.html">NYT).
 This is a case about a guy who killed a sheriff and a deputy.
 He is on death row in Kentucky.  Kentucky plans to
execute him using a three-drug cocktail: sodium thiopental, pancuronium
bromide, and potassium chloride.  



Thiopental is a barbiturate sedative; pancuronium is a paralyzing
agent; potassium chloride is a salt.  The barbiturate causes a
loss of consciousness, then death through cessation of breathing.
 Pancuronium also causes death through cessation of breathing.
 Potassium chloride causes death by stopping the heart.
 This method of execution was proposed by a pathologist in
1977, but was not subject to testing or peer review.  

Some of the ethical issues are discussed in an editorial in the NEJM
(open access): href="http://content.nejm.org/cgi/content/full/NEJMe0800032">
Physicians and Execution, by the editors: Gregory D. Curfman,
M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D.
(10.1056/NEJMe0800032).  They point out that both the American
Medical Association and the American Society of Anesthesiology have
barred the participation of physicians in execution.  Their
ethical guidelines have no legal force.  However, in actual
practice, States that have tried to get MDs to supervise executions
often are unable to find a doctor who will cooperate.



The crux of the Baze v. Rees matter is the question of whether the use
of the three-drug cocktail is cruel.  (It would be hard to
argue that it is unusual, since it has been done over 900 times.)



It seems clear that, when done properly, it is not cruel according to
the standards in place.  The problem is that, without medical
supervision, it sometimes is not done properly.  



As expected, the editors of the NEJM agree with the AMA and ASM that
physicians should not participate in any way, even in an advisory
capacity.  



Some of the arguments made in the case seem bizarre.  For
example, Chief Justice John G. Roberts Jr., as mentioned in the
Washington Post,

Roberts said removing the second drug from the
protocol or going to a one-drug method would lead to more litigation
from those questioning a new procedure.

I realize this was taken out of context, but is he really suggesting
that decisions on matters of constitutionality should be influenced by
the possibility of more litigation?



Another point:

Breyer and Justice David H. Souter suggested sending
the case back to the lower court for an examination of the three-drug
protocol compared with alternatives, something that was not done when
the case was decided.



Justice Antonin Scalia strenuously disagreed, saying the process "could
take years," while executions are put on hold.

Why is the length of time important?  If it is the right thing
to do, then that is how it should be done.



Another odd thing about the case is this: In Kentucky, is is illegal
to euthanize animals using the three-drug cocktail.
 Some have recommended the use of single-drug method: a
massive dose of thiopental by itself should work.  But why is
this not done?  In NYT:

The three-drug execution method has been used for
three decades. As for why it has not been abandoned in favor of an
overwhelming dose of phenobarbital, an anesthetic used to put down
animals, two explanations were offered by death penalty-watchers in
advance of Monday’s arguments: Each state is reluctant to try
something new, and no state wants to embrace a method used to euthanize
animals, despite the possibility that potassium chloride will inflict
excruciating pain as it courses through an inmate’s veins if
he has not been rendered unconscious by sodium pentothal.

"No state wants to embrace a method used to euthanize animals," so
instead they use a method that has been banned in veterinary
use???  OK, I guess even logic is entitled to take a
holiday.



Anyway, those are just oddities that I noticed.  The real
point of the post is illustrated by the following passages,
first from NYT:

The issue in the case of Baze v. Rees is not the
constitutionality of lethal injection as such, but a more procedural
question: How should judges evaluate claims that the particular
combination of drugs used to bring about death causes suffering that
amounts to cruel and unusual punishment, in violation of the Eighth
Amendment to the Constitution?

From WaPo:

Breyer and Justice David H. Souter suggested sending
the case back to the lower court for an examination of the three-drug
protocol compared with alternatives, something that was not done when
the case was decided.

"I'm at sea," Justice Stephen G. Breyer told
Washington lawyer Donald B. Verrilli Jr., who represents the inmates in
the case. "You claim that this is somehow more painful than some other
method. But which? And what's the evidence for that?"

What are the alternative?  What is the evidence?  The
people who are best able to respond are physicians.  But
physicians are ethically barred from participating.
 Even if the Court is able to get physicians to agree to
provide testimony, will the Court accept testimony from someone who is
violating the ethical standards of the profession?



What does the Court do, if it decides that it needs more facts in order
to decide a case, but the facts cannot be obtained?