Academic journal article Fordham Urban Law Journal

Anomalies: Ritual and Language in Lethal Injection Regulations

Academic journal article Fordham Urban Law Journal

Anomalies: Ritual and Language in Lethal Injection Regulations

Article excerpt

The state lethal injection protocols do not regulate lethal injections, but instead describe hypothetical rituals meant to reassure the reader--whomever that might be--that a controlled and orderly process, in accordance with the rule of law, will take place. The protocols are public relations documents, not legitimate legal regulations. Their status of "non-legal" documents, provisions without legal authority is evident from the fact that apparently they are not governed by state administrative procedure acts.

Epigraph: Culture, in the sense of the public, standardized values of a community, mediates the experience of individuals. It provides in advance some basic categories, a positive pattern in which ideas and values are tidily ordered. And above all, it has authority, since each is induced to assent because of the assent of others. But its public character makes its categories more rigid.... Any given system of classification must give rise to anomalies, and any given culture must confront events which seem to defy its assumptions. It [the culture] cannot ignore the anomalies which its scheme produces, except at risk of forfeiting confidence. (1)

I.

When a horse, a cow, a dog, or a grizzly bear is killed under the authority of the government, or by a private party in a planned euthanasia, the veterinarian performing the execution will follow euthanasia guidelines adopted by the American Veterinary Medical Association ("AVMA Guidelines") for the method of euthanasia to be used, including any drugs, restraints, and anesthetics required, so that the pain to the animal is minimized. (2) The AVMA Guidelines are directed to the humane death of animals:

   It is our responsibility as veterinarians and human beings to
   ensure that if an animal's life is to be taken, it is done with the
   highest degree of respect, and with an emphasis on making the death
   as painless and distress free as possible. Euthanasia techniques
   [for animals] should result in rapid loss of consciousness followed
   by a cardiac or respiratory arrest and ultimate loss of brain
   function. In addition, the technique should minimize distress and
   anxiety experienced by the animal prior to loss of consciousness.
   (3)

The AVMA Guidelines provide a technical description of stimuli, neural pathways, receptors, feedback, and other scientific topics and terminology before focusing on a description of the anticipated pain for the animal and its prevention. The Guidelines explain that the sensation of pain "results from nerve impulses reaching the cerebral cortex via ascending neural pathways." (4) Therefore, the Guidelines continue, to the best of our knowledge, pain is perceived only under certain circumstances:

   On the basis of neurosurgical experience in humans, it is possible
   to separate the sensory-discriminative components from the
   motivational-affective components of pain.

   For pain to be experienced, the cerebral cortex and subcortical
   structures must be functional. If the cerebral cortex is not
   functional because of hypoxia, depression by drugs, electric shock,
   or concussion, pain is not experienced. Therefore, the choices of
   the euthanasia agent or method is less critical if it is to be used
   on an animal that is anesthetized or unconscious, provided that the
   animal does not regain consciousness prior to death. (5)

"The AVMA is fully committed to the concept that, whenever it becomes necessary to kill any animal for any reason whatsoever, death should be induced as painlessly and quickly as possible." (6) The AVMA Guidelines "summarize contemporary scientific knowledge on euthanasia in animals and call attention to the lack of scientific reports assessing pain, discomfort, and distress in animals being euthanatized." (7) The AVMA only cites well-supported sources. (8) Therefore, "[m]any reports on various methods of euthanasia [that] are either anecdotal, testimonial narratives, or unsubstantiated opinions" are not included in their list. …

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