The New Jersey state legislature voted recently to repeal the death penalty and the state's governor is expected to sign the measure into law by next month. The move comes amid growing controversy over the use of lethal injection to execute criminals and after the Supreme Court of the United States agreed to hear arguments on the constitutionality of the procedure.
Lethal injection is the most common means of executing prisoners in the U.S. Currently, 37 states use it to put criminals to death. And New Jersey's vote makes the state the 13th in the nation to appoint a commission to determine whether the death penalty is being applied in accordance with due process.
The Heritage Foundation's Senior Legal Research Fellow, Brian Walsh, says many states have suspended executions after the U.S. Supreme Court agreed to hear appeals questioning the constitutionality of lethal injection. One of the most recent, he says, is a Kentucky case that argues that lethal injection violates the Eighth Amendment to the U.S. Constitution.
"There have been a number of cases including the Kentucky case where the Supreme Court has agreed to review whether the drugs that are being used for lethal injections are being administered in a proper way and not in a way that actually violates the Eighth Amendment's prohibition against 'cruel and unusual punishment' or against [the violation of] due process," says Walsh. "There are a number of different claims that have been made. So right now, that case is being reviewed by the Supreme Court. And until that decision comes down, many states have determined that they are not going to use lethal injection."
Most analysts expect the Supreme Court to issue a ruling within the next few months. Fordham University's Deborah Denno, one of the country's leading experts on lethal injection, says the high court is looking at three issues.
"The court, number one, has been asked to look at the three drug combination of lethal injection. This was a combination that was recommended in 1976 and it's not something that would be used in modern day technology if someone were to recommend drugs to execute someone," Denno says. "The second problem is the executioners. Most of them don't have any kind of training. A disproportionate number have had no training. They are prison volunteers. The third issue is these executions are taking place in environments that really aren't suitable. In a number of states, at least, we found that the inmates were in a room by themselves and the executioners were in an anteroom, putting the drugs through tubes that were sometimes leaky."
Denno says many experts consider the lethal injection's chemical composition and the way that it is administered problematic. "The first drug is called sodium thiopental and it's injected to make the inmate unconscious. The first drug wears off quickly. It wears off and the inmate is being injected with the second or third drugs," says Denno. "The second drug is a paralytic agent called pancuronium bromide and it can cause suffocation and it's tormenting. The third drug, potassium chloride, induces cardiac arrest. It is incredibly painful. So the inmates are paralyzed but conscious and aware as they're being injected with the second and third drugs but wouldn't be able to cry out because they are paralyzed."
"Cruel and Unusual Punishment"?
Supporters of the death penalty say lethal injection was chosen as an execution method after death penalty opponents objected to electrocution. The use of electrocution to put prisoners to death declined in the late 1980s as U.S. lawmakers searched for more humane methods of execution. Many states offer condemned prisoners the option to chose between electrocution and lethal injection.
The Heritage Foundation's Brian Walsh says the argument that lethal injection violates the constitution is a strategy employed by death penalty opponents who want to abolish capital punishment. "Now the line is being pushed further back and opponents of the death penalty say that it violates the Eighth Amendment both by the way that it's administered and by the chemicals themselves not necessarily being the right ones to cause pain to be eliminated before death occurs," says Walsh. "But it's not really a constitutional issue, although they have been trying to constitutionalize it for years. And once it becomes a constitutional issue, then that decision is taken out of the hands of the people and put in the hands of the Supreme Court justices."
The National Debate
While most analysts agree that the controversy is more about the capital punishment system than lethal injection in particular, they acknowledge that it has fueled an unprecedented national debate.
Richard Dieter, Executive Director of the Washington-based Death Penalty Information Center, says no other controversy over how condemned prisoners are put to death has inspired a moratorium on executions or caused Americans to rethink the death penalty to this degree.
"I don't think the current hold on executions would have occurred only if it was a problem with lethal injection. I think it's because the whole death penalty is on the defensive. The whole death penalty has been found wanting in that people have been freed from death row, people who were innocent almost were executed," Dieter says. "So people are starting to have reservations about the death penalty. They are not opposed to it, but they don't see it accomplishing much. For victim's families, there's an incredibly long wait. For budget legislators, costs are going up to make sure the death penalty is administered accurately. So that's the kind of analysis that's going on right now."
Whether the Supreme Court finds the use of lethal injection unconstitutional or in need of modification, Dieter says the ruling, as well as growing public uncertainty about capital punishment and New Jersey's move to repeal the death penalty, could put the country on a different path. "It doesn't mean that there will be a whole house of cards falling one after the other states following New Jersey's example, but other states are also considering the death penalty in their legislatures. And some have already come close to abolishing it. So it's not that the death penalty is going to end this year or next year or even in the next few years. But there are signs of fewer executions, fewer death sentences, a smaller death row and a little less public support for the death penalty."
Opponents of the death penalty hope that a Supreme Court ruling against the use of lethal injection will bring an end to the practice. Supporters of the death penalty worry that if the Supreme Court decides to abandon lethal injection, justice will not be served.
This story was first broadcast on the English news program, VOA News Now. For other Focus reports click here.