The Economist

Lethal injection Unconstitutional?

The Supreme Court examines the most commonly used method of execution

Back in 1982, Texas became the first American state to carry out an execution by lethal injection. It was regarded as a surer, cleaner and above all more humane method than other forms of capital punishment such as the electric chair, hanging, gas or firing squad (just abolished in Utah ). A decade later, lethal injection had become the preferred method of execution in all but one of the 38 states that still have the death penalty. Now it, too, is under threat. 

In his appeal to the Supreme Court, heard this week, David Nelson, a 59-yearold triple murderer from Alabama, argued that the state's plan to cut deep into his flesh and open his veins in order to inject him with a lethal cocktail of chemicals amounted to a cruel and unusual punishment, and as such was forbidden under the Eighth Amendment of the American constitution. A less invasive operation was not possible, he said, because his veins had been damaged by years of drug abuse. 

The key issue before the court is a technical one-whether last-minute appeals from death-row inmates should be allowed in federal courts. Congress reportedly plans to limit such appeals. But the case is helping reanimate the capital-punishment debate, already stirred by the fact that John Kerry, one of the few politicians to oppose the practice (except for terrorists), is running for the presidency. 

According to the Washington-based Death Penalty Information Centre, at least 15 death-row prisoners have challenged the legality of the lethal-injection process during the past year. Although most received temporary stays of execution, all but two ultimately lost their appeals and were put to death. But in February a  New Jersey judge ordered a halt to all executions in the state after ruling that research on the lethal-injection process was inadequate and the state's procedures for carrying out executions flawed. No matter that  New Jersey has had no executions since 1963; it was the principle that mattered. 

The lethal injections used by most states involve three drugs that enter the condemned person's arm or leg through an intravenous line. Sodium thiopental, an anaesthetic used in surgery, is first injected to render the convict unconscious. This is followed by pancuronium bromide, which paralyses the muscles and blocks breathing, but leaves nerve and brain functions intact. Potassium chloride is then administered to stop the heart. 

Those who have witnessed executions by lethal injection say the deaths appear almost hauntingly serene, more evocative of an operating theatre than the gallows. But it is now argued that this tranquillity could be deceptive: if insufficient sodium thiopental has been administered, a paralysed yet wide-awake patient could find himself unable to speak, cry out or indicate his distress in any way as he first slowly suffocates and then suffers a massive heart attack. Most states' execution rules do not take account of the way people of different sizes absorb anaesthetic. 

Apart from  Japan , which carries out very few executions, the  United States is the only big democracy to retain capital punishment. Abolitionists have made some progress in recent years, thanks to mounting worries about judicial error in capital cases. Twelve of  America 's 5o states have abolished the punishment, and several more have not used it since the Supreme Court reinstated it in 1976 after a nine-year moratorium.

 Since then, more than 900 executions have been carried out, half of them in three states- Texas ,  Oklahoma and  Virginia. After rising to a peak of 98 in 1999, the number of executions has been falling steadily, to 65 last year. The number of death sentences handed down by juries has fallen even more sharply-by 50% over the past five years. But seven in ten Americans continue to support the death penalty, and few see any chance of its abolition throughout the  United States in the foreseeable future, if ever.