After a botched execution last week in Oklahoma, a panel of legal experts is calling for an overhaul of how capital punishment is practiced in the US, including dropping the three-drug cocktail often used in lethal injections in favor of a one-drug method.
The report, “Irreversible Error,” does not take a position on whether states should allow the death penalty. But it does condemn, in sweeping terms, how capital punishment is applied in the US, citing as problematic the three-drug cocktail used in several bungled executions during the past year.
The Constitution Project, a bipartisan panel that includes former judges, governors, and prosecutors, among others, prepared the report. The Washington D.C.-based group includes opponents and supporters of the death penalty.
The panel says the three-drug protocol that most states follow for executions has enormous potential for flubs, including under-administering the sedative, which leaves the prisoner conscious as he suffocates to death when the next two drugs kick in.
“The three-drug cocktail poses a risk of avoidable inmate pain and suffering,” write the report’s authors.
Death-penalty states should use, instead, a large enough dose of a single anesthetic to cause death, the panel recommends. That method is already used to euthanize pets, as well as for doctor-assisted suicides in Oregon.
One question, though, is whether companies that make anesthetics are willing to sell their products for use in executions. In recent months, states have been getting their lethal injection drugs from lightly regulated pharmacies whose names have not been made public, and critics contend that the condemned have a right to know the source, and quality, of the drugs to be used to kill them. The "Irreversible Error" panel urges states to disclose the source of lethal-injection drugs, and says states have an obligation to guarantee their quality.
The panel also notes that a lethal injection can go wrong if an unexperienced person handles insertion of the intravenous line, and it calls for qualified medical professionals to conduct all executions. That could present another hurdle; the American Medical Association prohibits its professionals from taking part in executions.
"Irreversible Error," released Wednesday, comes about a week after an Oklahoma execution using a three-drug cocktail purchased from a publicly unknown source went badly awry. Prison officials hastily pulled the shades to the witness room after the prisoner, Clayton Lockett, woke up mid-process in apparent pain; officials say he died of a heart attack 40 minutes later. Prison officials said the first drug, the sedative, had leaked out because of a problem with Mr. Lockett's vein.
Calling the Oklahoma execution “deeply disturbing,” President Obama has directed the Justice Department to review capital punishment in the US. The execution, he added, “highlighted” other longtime issues with the death penalty, such as racial biases in the justice system and the risk that a state might kill an innocent person.
The report's key findings dovetail with Mr. Obama's comments. Besides criticizing current lethal injection methods, the report's authors cite other problems that they say are inherent in the application of capital punishment. Chief among them, the report says, are the human mistakes, biases, and wrongdoings that can condemn to death the wrong person.
The US Constitution bans "cruel and unusual punishment." As some prisoners have appeared to experience pain during execution, the ensuing uproar has prompted greater soul-searching about the future of the death penalty in the US.
The panel's concerns, however, are not confined to lethal injection and how to carry it out. Recent statistics and analyses may bear out those concerns.
Last year, a record 87 people convicted of crimes in the US were exonerated, including one person who had been sentenced to death, according to the National Registry of Exonerations. Overall, 105 of the 1,238 people exonerated since 1989 in the US came from death row, the registry found. Plus, a day before the execution in Oklahoma, a report published in Proceedings of the National Sciences and based on a statistical analysis found that about 4 percent of the inmates sentenced to death in the US are likely to be innocent.
Such errors occur throughout the criminal justice system, the Constitution Project panel asserts. Among its recommendations for ways to prevent mistakenly sending someone to death row: a requirement that police interrogations be videotaped in full, to preempt coerced or false confessions. The majority of police departments in the US do not do so, although one-fifth of wrongful homicide convictions in the US since 1989 have been linked to false confessions, according to the National Registry of Exonerations.
Other recommendations include raising pay for public defenders to attract better-qualified lawyers; changing eyewitness identification protocols; and establishing measures to better ensure that prosecutors disclose all exculpatory evidence to the defense.
The committee also raises questions about states' leeway in defining what qualifies a defendant as intellectually disabled (a condition that rules out a death sentence), and it calls on states to address the uneven application of death sentences for racial minorities.
Six states have eliminated the death penalty in the past six years. States have found that “reforms are insufficient to cure identified systemic problems,” the panel writes. Thirty-two states still have capital punishment.