Who would Antonin Scalia torture?

Next week, when the Supreme Court hears a case challenging the use of lethal injections, we may learn more about the legal limits to state-sanctioned pain.

By Alan Berlow

Read more: George W. Bush, Death Penalty, Supreme Court, Clarence Thomas, Opinion, Torture, John Roberts

REUTERS/Yuri Gripas

Supreme Court Associate Justice Antonin Scalia at the National Italian American Foundation Public Policy Forum on Capitol Hill May 18, 2006.

Jan. 2, 2008 | Last June during a panel discussion in Ottawa about terrorism and the use of torture, Supreme Court Justice Antonin Scalia stood up for the TV torturer extraordinaire and hero of Fox Broadcasting's "24." Scalia insisted that the fictional spy had "saved hundreds of thousands of lives" using tough interrogation tactics to stop a terrorist from nuking Los Angeles.

"Is any jury going to convict Jack Bauer?" Scalia scoffed. He went on to argue that when it comes to torture, "the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

The clear implication was that Justice Scalia does not believe in an absolute ban on torture -- at least when it comes to suspected terrorists. That's a popular view these days, particularly among members of the Bush administration, although the hard questions of whether there are any limits on the use of torture have yet to be fully tested in the courts. We may get a somewhat better idea of just how far Scalia and his colleagues would go in tolerating abusive treatment of prisoners -- or what some would call torture -- next week when the Supreme Court considers a case challenging the use of lethal injections in execution.

The case, Baze v. Rees, is the first since 1878 in which the Court has agreed to examine the constitutionality of a specific method of execution. A de facto moratorium on execution by lethal injection has been in place nationwide pending the outcome of this case. Although the Court will not rule on the constitutionality of the death penalty itself, the federal government and states that employ lethal injection fear an adverse ruling could make it much more difficult, if not impossible, to carry out executions.

But what does lethal injection have to do with torture? Lethal injection was, after all, designed as a humane, indeed painless, alternative to electrocution and has been used by 36 states and the federal government to conduct some 929 executions since 1976. Witnesses to many of these executions have reported seeing nothing more dramatic than the condemned "going to sleep."

Attorneys for the plaintiffs in Baze -- one the murderer of two Kentucky deputy sheriffs, the other the murderer of a man and his wife -- have pulled together a sizable body of evidence suggesting not only that killing someone painlessly with the three-drug "cocktail" employed by today's executioners may be a lot harder than was previously thought, but that witnesses to executions may not realize they are watching someone being tortured to death.

Scientists agree that the three-drug concoction can kill a person painlessly if everything goes right. But the court will hear arguments that so many things can and do go wrong in the administration of these chemicals that there is an "unnecessary risk" that an execution may, in effect, involve the torture of the condemned. Plaintiffs have filed evidence from a handful of botched executions, including one in which witnesses heard the inmate moaning for 50 minutes before he expired.

Why things go wrong has to do both with the chemicals used and the personnel who administer them. Lethal injections typically employ sodium thiopental, a fast-acting barbiturate, to ensure that the condemned is fully unconscious before the second drug, pancuronium bromide, is administered. If the individual is not fully anesthetized, pancuronium bromide -- which paralyzes the muscles, including the diaphragm -- will make him feel as if he is suffocating to death, a feeling not unlike that of having a severe heart attack. In a case challenging Tennessee's use of lethal injections, state medical examiner Bruce Levy testified that "suffocating to death would be a most violent form of death." It is precisely this sensation of suffocation that has made the CIA's use of waterboarding, or mock drowning, so controversial. Prior to the Bush administration the U.S. government had condemned the use of waterboarding as torture.

Because pancuronium bromide is used principally to immobilize the condemned -- so observers don't have to watch him gasping, choking or thrashing about in his death throes -- the plaintiffs contend it is unnecessary for accomplishing the purpose of execution. They also argue that because the chemical paralyzes the voluntary muscles, an individual who feels as if he is suffocating to death would be unable to speak and witnesses would have no idea that he was suffering. This problem would continue as the condemned is hit with the third chemical, potassium chloride, which is designed to stop the heart but which also irritates the lining of the veins, creating a sensation that the person is on fire.

Dr. Dennis Geiser, a professor of veterinary medicine at the University of Tennessee, told me that the use of potassium chloride and pancuronium bromide without proper anesthesia would result in an "agonal type of death." "It would be like tying you up to a wall and torturing you. You're wide awake but you can't respond." Geiser, a death penalty supporter, and three other veterinarians have filed a friend-of-the-court brief in the Baze case in which they note that the pain caused by potassium chloride is so severe that its use on conscious animals has been condemned by the American Veterinary Medical Association.

Next page: "If anyone wants to know what HELL is like this is it"