Use of the Drug Pavulon in Lethal Injections: Cruel and Unusual?

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INTRODUCTION

The standard methods of execution used by American states have changed over time as technological and medical advances have revealed more "humane" ways of executing death row inmates. At various times in the history of this country, states have authorized the use of hanging, firing squad, electrocution, the gas chamber, and lethal injection.1 Lethal injection is, by far, the most prevalent method used by the thirtyeight states that permit capital punishment today, as well as the federal government and the United States military.2 As has happened with every method of execution used in recent American history, however, prisoners have begun to challenge the constitutionality of lethal injection under the Eighth Amendment's ban on cruel and unusual punishments.3 One of the most disturbing claims being made is that the anesthetic used in most lethal injection cocktails wears off before the prisoner dies, leaving him with full sensory perception as a lethal drug is pumped into his veins.4 According to this theory, the prisoner's outward appearance remains calm because he has been injected with a drug, usually pancuronium bromide (commonly known as pavulon), that paralyzes his body.5 These claims raise substantial questions about whether lethal injection is, in fact, more "humane" than other methods of execution (and whether a truly humane method of execution is even possible).

Section I of this Note explores the history of the death penalty in this country, including the crimes and categories of offenders that have been exempted from capital punishment, while Section II reviews the evolution of different methods of execution throughout history. Section HI describes the relevant statutes and policies of each jurisdiction that permits lethal injection, including the drugs used in each jurisdiction's lethal injection "cocktail," as well as the requirements for technicians involved in administering lethal injections. Section IV explores medical research on the drug pavulon, including its effectiveness as a paralytic agent. Section V focuses on the use of pavulon in the lethal injection cocktail, describing the arguments of death penalty opponents and proponents, legal challenges made by death row inmates, and legislative responses to claims that pavulon makes lethal injection a cruel and unusual punishment. Section VI details possible alternatives to pavulon. Lastly, Section VU evaluates the merits of death row inmates' challenges to pavulon and explores possible solutions to the lethal injection problem, as well as the question of whether it is even possible to have a truly "humane" method of execution.

I. A BRIEF HISTORY OF THE DEATH PENALTY IN THE UNITED STATES

A. Death Penalty Jurisprudence of the Supreme Court

While it has gradually whittled away the crimes and categories of offenders eligible for capital punishment, the Supreme Court of the United States has never held that the death penalty is, per se, unconstitutional under the Eighth Amendment.6 In Trop v. Dulles,1 the Supreme Court held that "the words of the [Eighth] Amendment are not precise, and . . . their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."8 Using that standard of review, the Court held in 1972 that all of the states' death penalty statutes violated the Eighth Amendment because "this unique penalty . . . [was] so wantonly and so freakishly imposed."9 In 1976, the Court upheld some of the states' new death penalty statutes because they gave guidance to sentencing juries and included "safeguard[s] against arbitrariness and caprice."10

B. Categories of Offenders Exempted from the Death Penalty

Since its decision in Gregg, the Court has held that states may not make the rape of an adult woman a capital crime." Likewise, it has exempted the mentally insane,12 the mentally retarded,13 and juveniles14 from eligibility for capital punishment. …