The Death Penalty by Lethal Injection and Hill v McDonough: Is the USA Starting to See Sense?
| Published date | 01 April 2007 |
| Date | 01 April 2007 |
| DOI | http://doi.org/10.1350/jcla.2007.71.2.167 |
| Subject Matter | Article |
The Death Penalty by Lethal
Injection and Hill v McDonough:
Is the USA Starting to See Sense?
Karen Harrison* and Caroline Melville†
Abstract Since the late 1980s lethal injection has been the preferred
method of executing prisoners on death row in the USA. This has largely
been because it is seen by many as the most humane method of lawful
killing. The injection consists of a lethal cocktail of three drugs which are
in turn administered to the prisoner. The first drug is an anaesthetic which
is used to eliminate the pain caused by the other two, hence allowing a
pain-free and humane death. Recent research however has established
that it is highly probable that many prisoners are not in fact anaesthetised
when the pain inducing drugs are injected into their systems. Instead
those on death row are at a high risk of suffering cruel or unusual
punishment in breach of the Eighth Amendment of the US Constitution.
The courts in the USA have not, in the main, supported such a theory,
although Hill vMcDonough, Interim Secretary, Florida Department of Correction
et al. now seems to have opened the door for prisoners to test the
constitutionality of the lethal injection in local Federal Courts.
The USA is alone among Western democracies in its continued use of the
death penalty. While international condemnation has been widespread
the US response largely has been to deflect arguments against the
practice of death by changing the method of execution. Lethal injection
is claimed to be a less barbaric way of killing than other methods such as
the electric chair and gas chamber. However, it appears that opinion may
at last be moving against the death penalty and that the supposed
sanitised method of lethal injection is being recognised as equally,
although less dramatically, barbaric as other forms of judicial killing.
This article questions whether the use of lethal injection is in breach of
the Eighth Amendment of the US Constitution and considers the case
of Hill vMcDonough, Interim Secretary, Florida Department of Correction
et al.1and its implications for prisoners currently awaiting execution on
death row.
The Eighth Amendment to the US Constitution states that, ‘excessive
bail shall not be required, nor excessive fines imposed, nor cruel or
unusual punishment inflicted’. This amendment was ratified in 1789
and was designed to stop punishment such as disembowelling and
burning, where death was secondary to retribution and pain infliction.2
The compass of the latter part of the clause has been subject to much
* Senior Lecturer, University of the West of England, Bristol; e-mail
Karen.Harrison@uwe.ac.uk.
†LLB, postgraduate student, University of the West of England, Bristol; e-mail
Caroline.Melville@uwe.ac.uk.
1 547 US __ (2006) Case Number 05–8794, available at www.supremecourtus.gov/
opinions/05pdf/05-8794.pdf, accessed 16 January 2007.
2 The Lancet Editorial, ‘Lethal Injection on Trial’ The Lancet, vol. 367, issue 9512,
March 2006, 703.
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