Your Lethal Injection Bill: A Fight to the Death over an Expensive Yellow Jacket

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ABSTRACT

This article reviews in detail the history of capital punishment, and the United States' constitutional proscription of "cruel and unusual" punishment. Examined are the Magna Carta of 1215, English Bill of Rights of 1689, and various bills of rights of the early American colonies, as they were critical to the Drafters' enlightened understanding of corporal punishment, which eschewed the barbaric and inhumane and culminated in the Eighth Amendment's prohibition of "cruel and unusual" punishment. Included, also, is an examination of the early cases alleging Eighth Amendment violations, for they developed the judiciary's determination of whether certain methods of capital punishment, such as the firing squad and the electric chair, were too "cruel" or "unusual" to pass constitutional muster. This article further exposes the great societal costs engendered by the United States' enlightened approach to capital punishment. Specifically discussed are the enormous expenses beget by the death penalty process, and how these expenses deplete local state economies, distort economic decisions, and render capital punishment anti-productive. This article then particularly examines the litigation concerning lethal injections, and the recent inclusion of pentobarbital into the death-producing cocktail. The ultimate question posed is thus: considering the recent turn of economic events, can the United States continue to maintain the death penalty when life imprisonment without parole may prove to be more cost-efficient?

[FIGURE 1 OMITTED]

   Litigation on behalf of death row inmates has exposed problems at
   every step of the process, including the mixing of the drugs; the
   setting of the IV lines; the administration of the drugs; and the
   monitoring of their effectiveness. At each step, discovery has
   revealed untrained and unreliable personnel working with inadequate
   equipment under poorly designed conditions. (1)

   Lethal injection as a mode of execution can be expected, in most
   instances, to result in painless death. Rare though errors may be,
   the consequences of a mistake about the condemned inmate's
   consciousness are horrendous and effectively undetectable after
   injection of the second drug. Given the opposing tugs of the degree
   of risk and magnitude of pain, the critical question here, as I see
   it, is whether a feasible alternative exists. Proof of "a slightly
   or marginally safer alternative" is, as the plurality notes,
   insufficient. But if readily available measures can materially
   increase the likelihood that the protocol will cause no pain, a
   [s]tate fails to adhere to contemporary standards of decency if it
   declines to employ those measures. (2)

Abstract
  I. Introduction
 II. The Macabre History of State-Sanctioned Killing
     Ancient History Through the 17th Century in the American
        Colonies
  l      The Punishment of Death During Ancient Times
        The Death Penalty in the Roman Empire
        Executions in Britain
        Capital Punishment in the Colonies
     Capital Punishment in the States
        Hanging
        The Firing Squad
        Electrocution
        The Gas Chamber
        Lethal Injection
     The Death Penalty and Eighth Amendment Jurisprudence
        Early Ruminations of Decency
        Beyond Wilkerson v. Utah: Accidents Do Happen
        From Furman v. Georgia to the July 2 Cases
        Death after Life
III. "Can you put a price on justice?:" Economics of the Death Penalty
     The Economics
        Dollars and Sense
        The Tax Burden of Justice
     The Politics
 IV. Pentobarbital and Death after Baze
     What does lethal injection cost?
     Pentobarbital
 V. Conclusion

I. INTRODUCTION

It has been posited that the use of pancuronium bromide (or vecuronium bromide) in the three-drug execution protocol used by many states to execute death row inmates is inhumane because it does not affect consciousness or sensation. …