WASHINGTON — It took so long to kill Christopher Newton that they had to give him a bathroom break.
Mr. Newton was sentenced to be executed by the state of Ohio last May for murdering a fellow inmate in a dispute over a chess game. But he was a big man, and his executioners had trouble finding a vein in which to inject the lethal cocktail. It took 10 tries, almost two hours and a trip to the john before they finally managed to kill the man. Witnesses said Mr. Newton remained quite cheerful through it all.
Joseph Clark was not so patient. His execution last year by the same state lasted an hour and a half — it should have only taken 20 minutes — again because the executioners had difficulty finding a usable vein. At one point Mr. Clark pushed himself up and declared, “It don't work.” He even pleaded, “Can't you just give me something by mouth to end this?”
The Supreme Court agreed this week to consider whether execution by lethal injection in its current form constitutes cruel and unusual punishment, and is thus a violation of the Eighth Amendment of the U.S. Constitution.
Although the court's term begins Monday, it is unlikely to hear arguments until January or February, with a ruling due by summer. During that time, lawyers representing condemned inmates across the United States will argue for a moratorium on capital punishment.
Their arguments cut little ice in states like Texas, which executes prisoners with positive enthusiasm. Texas executed Richard Bird Tuesday, hours after the court announced its decision to review the constitutionality of lethal injections. But in Alabama, an execution scheduled for last night was stayed yesterday.
Even a partial moratorium resulting from the court's review will contribute to the slow, steady, merciful decline of capital punishment in the United States.
“It's no longer a question of whether the United States will abolish the death penalty; it's a question of when the United States will abolish the death penalty,” argues David Elliot of the National Coalition to Abolish the Death Penalty. “The death penalty is simply withering away.”
Executions are on the wane in the United States. Fifty-three people were put to death last year, compared with 98 in 1999. Acquittals of condemned prisoners through DNA evidence, recent court rulings that banned the execution of minors and the mentally handicapped, and concern over the humaneness of lethal injections — by far the most common form of execution — have led to formal or informal moratoriums in many states. Thus far this year, only 10 states have performed executions, all in the South or Midwest. Twenty-six of the 42 people put to death were in Texas.
The concern over lethal injections goes beyond the problem of insufficiently skilled executioners. (Doctors and nurses are professionally prohibited from killing anyone.) Critics maintain that the drugs mask what could be agonizing deaths.
Typically, the person to be executed is given three drugs from a team operating outside the execution chamber: sodium thiopental, to sedate him; pancuronium bromide, to induce paralysis; and potassium chloride, better known as road salt, to induce cardiac arrest.
Critics maintain that the sedative typically begins to wear off shortly after it is administered. If that is true, the second drug that paralyzes the victim would make him able to feel pain but unable to communicate that he is awake. If so, the injection of the potassium chloride would cause excruciating pain.
The case before the court, brought by lawyers on behalf of Ralph Baze and Thomas Bowling, who are sentenced to die in Kentucky, does not ask the court to prohibit lethal injections entirely. (If it did, surely all other forms of execution, from electrocution to hanging to gassing to firing squad, would also be deemed unconstitutional.)
“This case is about whether using chemicals or a procedure that creates a known risk of pain and suffering violates the cruel and unusual punishment clause when the chemicals and procedures could be replaced with alternatives that cause less risk of pain and suffering,” declares the plaintiffs' petition to the court.
Even if the court were to declare that some other form of lethal injection should substitute for the current one, however, the consequences would be significant. Although the laws differ from state to state, many states would be required to pass legislation authorizing the new form of execution — legislation that, in at least some states, might fail to pass.
Most observers believe that, as in so many rulings, the court is divided 4-4 on the issue, and that Mr. Justice Anthony Kennedy will cast the deciding vote.
Whatever the court decides, Mr. Elliot is convinced that the number of executions will steadily decline over the next 15 years to something approaching zero.
“Maybe we'll have one or two executions each year, just to prove that we still can,” he speculates.
In which case, it will still be one or two more than occur anywhere else in the civilized world.