The institution of the death penalty as a form of punishment in our legal systems is a long-standing practice of truly prehistoric origins, even preceding the birth of the modern state and going centuries back. Even God himself was a big fan and seemed to have canvassed its stringent application in providing for its inclusion in the first notable book of the Bible. This is clearly evident in the Book of Genesis 9:6 where God in one of his promises to one of the earliest men, Noah, assures that “whoso sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man”. And the Bible isn’t alone on this, as we see other traces of it in one of the most ancient law codes and unarguably the longest surviving text from the old Babylonian era; The Code of Hammurabi, dating back about to about 1754 BC. As a law code, The Code of Hammurabi as applied by the Babylonians might well be regarded (and rightly so) as the poster boy for old-fashioned retributive justice with its support of “an eye for an eye, a tooth for a tooth” crude legal ideals which have come to proliferate modern penal legislations.
While the prior application of the death penalty may have been morally and legally unquestionable in the more barbaric and highly charged climates of eras gone by, today, however, its existence and continuous sanctioning by the state has met mounting opposition by so many citizens who feel that the death penalty is well and truly out of step with current civilized standards espousing the inviolability of the human person and guaranteeing personal dignity to everyone regardless of status. Some death penalty protesters have taken their argument a step further, insisting that its imposition by the state is not only morally reprehensible but essentially anti-life since it constitutes a grave violation of the offender’s sacred right to life.
That the state exists only to protect lives and property and punish crimes where appropriate. But that this obligation does not warrant the deprivation of lives by the state for convicts, however heinous the crime.
Given this mounting current of anti-death penalty sentiments, many governments across the globe have come under enormous internal and external pressure to abolish the death penalty in their administration of criminal justice. It’s to be observed that a few of these countries applying the death penalty have remained adamant on their stance, while, among the other overwhelming majority, some have abrogated it outright, while the others have reached something of a compromise in reform, choosing instead to retain it and yet, substantially altering its form to something far more “humane and painless” to mollify one of the prime criticisms leveled against it as being “torturous and degrading”. This is what is now popularly regarded as the lethal injection, an alternative form of execution often considered to be far more humane than the older forms in existence such as electrocution, gas inhalation, hanging and firing squad.
While the lethal injection as capital punishment is comparatively newer than the other long-established methods, yet, since the turn of the century many states have contemplated its introduction in their criminal law as the dominant punishment in capital cases.
Currently, it’s the most common form of execution in the United States where it was first introduced. And until 2004, roughly 37 of the 38 states using capital punishment had enacted lethal injection statutes into their jurisdictions.
Given its growing popularity, a couple of other countries have followed the United States in imposing lethal injection as death sentence. China switched from the firing squad to lethal injection in early 2010. Taiwan was the first country to legalize legal injection besides the United States. But to date, the country has yet to carry out any executions.
This is also the case in Guatemala where since a rumored botched televised execution in 2000, there has been a hiatus. In October of 2003, the government of Thailand officially proclaimed lethal injection as capital punishment for death row convicts. But here too, executions have been on hold since 2009.
Lethal injection as applied in capital cases in the United States involves the practice of injecting a mixture of three highly potent drugs namely; a barbiturate, paralytic and potassium solution into a condemned prisoner to facilitate death. These drugs when sequentially administered to a prisoner induce unconsciousness, followed by paralysis of respiratory muscles and finally cardiac arrest, stopping breathing with death pronounced in about 7 to 11 minutes. Apologists for lethal injection in the United States have claimed that it’s the more viable option in capital executions as the combination of these powerful medical drugs prevent cruelty while guaranteeing a painless and dignifying death for the prisoner. While such claims may be well-founded, however, its current administration across the states has thrown up a lot of ethical and legal challenges.
Recently, there has been a series of recurring botched controversial executions finally culminating in calls for its abolition. In some cases, convicts have writhed and shaken uncontrollable minutes even after been pronounced dead. An instance is the execution of Clayton Lockett at Oklahoma State Penitentiary, where he was said to have survived for almost 43 minutes after been administered an untested mixture of drugs. A similar incidence occurred in 2014 in the state of Ohio when Dennis McGuire, a death row inmate was reportedly grasping for air 10 to 15 minutes after receiving a new drug combination.
Until the judgment of the US Supreme Court in 2015 in Gossip v. Gross upheld the legality of the lethal injection in the United States, some even challenged it on the ground that its application violated the eight amendment to the US Constitution prohibiting cruel and unusual punishment due to this increased risk of pain during executions.
Perhaps, the current risk of consciousness among inmates during executions might have something to do with the three drug lethal injection protocol used in most US states. Given the complexity of this procedure, its effectiveness is predicated on the participation of trained physicians in the process. But the American Medical Association has been in vehement opposition, insisting that a physician’s participation in executions is inconsistent with their sworn Hippocratic Oath to preserve human life. They argue that a doctor “should not be a participant” in executions in any professional capacity with the exception of “certifying death, provided that the condemned has been declared dead by another person”.
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Patrick Herbert is the Editor-in-Chief and founder of Law Student Hub. He is an LL.B. Law graduate from the University of Benin, Nigeria. He’s a life enthusiast, a budding writer and internet entrepreneur. Patrick is deeply passionate about law and research and has inspired many with his thought-provoking articles. To get in touch, follow him on social media.