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CLB was fortunate to have Amanda Pustilnik present at our journal club last Wednesday, Oct. 8th. Amanda is a Climenko Fellow at Harvard Law School and is writing on models of mind in neuroscience and criminal law and on torts by semi-autonomous machines. Amanda presented her current work on “Seeing Pain, Measuring Value(s).”
Amanda’s talk underscored how important the measurement of pain is to the law: in disability benefits, tort damages, torture, and the death penalty — the practical line between victory and defeat (and mad or mediocre damages) is often drawn by measuring pain.
What struck me was a somewhat separate line of thinking that Amanda addressed: whether the way we gauge someone’s pain may say more about society than it does about the individual. In some cases, more objective measurement of pain is desired so as to prevent perceived malingering in disability or torts claims. Inflicting severe pain may increase the punishment for a criminal charge. But pain might also operate as a placeholder, a subjective barometer that can be turned up or down depending on how much we sympathize with the defendant or feel shame for the process (as with execution or torture).
And here’s where my editorializing begins. Pain may be used morally and legally precisely because of its subjectivity and wiggle room. Put differently, pain is real. But because the person experiencing it may paint a picture that others distrust, the canvass is left empty. Outsiders can then throw whatever colors at it that they want.
Seeing pain as a fulcrum device for making normative decisions is a conclusion I came to after reading Baze v. Rees, which was decided by the Supreme Court in April of this year. The petitioners in Baze were two death-row inmates, Ralph Baze and Thomas Bowling. They brought an action against the Kentucky Department of Corrections, alleging that the three-part drug cocktail used by the state for lethal injection posed an unacceptable risk of excruciating pain and was therefore unconstitutionally cruel and unusual in violation of the Eighth Amendment. In short, the Supreme Court held that the risk of improper administration did not render the three-drug protocol unconstitutional.
The method at issue in Baze was originally developed by Oklahoma’s chief medical examiner in 1977. Thirty of the thirty-six states that use lethal injection employ this sequential three-drug cocktail. It involves the inmate first being injected with sodium thiopental for anesthesia, then pancuronium bromide to paralyze the body, and finally potassium chloride to stop the heart. According to the petitioners, there is an unacceptable risk of harm if the drugs are given improperly. If not enough of the first anesthesia drug is given, there is risk of suffocation from the administration of the second drug, and of excruciating pain from the third. As the Baze petitioners contested not the cruelty of the death penalty itself, but rather the painful procedures employed, the Court understandably responded by doing what it does best – unpacking the procedure. In this way, an argument fundamentally rooted in substantive civil rights is discussed in terms of “alternative protocols” and procedural safeguards such as the “establishment of backup IV lines” and a “systematic mechanism[s]…for monitoring the prisoner’s ‘anesthetic depth.’
The chief problem with the method lies in the use of the second drug to paralyze the inmate. It can mask serious pain if the first drug is not administered properly and serves no other purpose but to make the process appear more “dignified” (i.e., we cannot see the inmate writhing in excruciating pain.)
Over the course of our history we have thankfully seen many barbaric punishments fall by the moral wayside: the whipping post, quartering, castration, and hangings. In many cases the parties argued that the punishments included wanton infliction of pain by describing the atrocity that the witnesses would see: “His eyes pop almost out of his head, his tongue swells and protrudes from his mouth…and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on.”
What’s ironic, is that twenty-three states, including Kentucky, consider the three-drug cocktail illegal for animals as it is unnecessary and risks pain. Even so, a plurality of the Court stated that “veterinary practice for animals is not an appropriate guide for humane practices for humans.” The Court went on to say that “the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant…in order to prevent a prolonged, undignified death. That concern may be less compelling in the veterinary context.” Regardless of whether we anchor our understanding of human dignity in alleviating pain or encouraging a sterilized death, it is shocking that the state governments protect animals more in this regard than convicts on death row. This contradiction speaks volumes about who it is we are actually protecting.
Justice Stevens’ concurring opinion in Baze is particularly insightful to a view of pain and human dignity that comports with Amanda’s thesis:
The plurality believes that preventing involuntary movement is a legitimate justification for using pancuronium bromide because ‘[t]he Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.’ This is a woefully inadequate justification. Whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.
Justice Stevens nailed it. The Baze plurality confuses human dignity with a well-intentioned, but thinly veiled effort to shield third parties from witnessing the gruesome reality of the death penalty.
The trend away from brutal killing toward less painful and atrocious execution is a moral victory in one sense. If we have the technological capacity to remove the unnecessary infliction of pain, this bolsters the moral legitimacy of the death penalty, in so far as it has any. After all, why should the state inflict pain for pain’s sake? Why should a convict be shot by a firing squad when he could be disposed of quietly? Why should we bother witnessing the vulgar snapping of a neck in a noose, when we could inject something to peacefully and apparently painlessly stop a prisoner’s heart?
The problem is that only when we confront the substance of the death penalty, and all of the gory details attending to it – like the defecation, the eyes popping out, and the snapping of the neck – can we truly calculate whether it is worth the very real costs. In upholding the three-drug cocktail in Baze, perhaps the Court is reflecting our society’s moral confusion about the death penalty itself. Even if we support the practice in theory, we are increasingly uncomfortable with witnessing it head on (and we certainly don’t want to give inmates cause to bring Eighth Amendment claims whenever there is a less painful protocol available). We therefore draw our lens away from questioning the dignity of the substance, and instead focus on the protecting the dignity of the procedure.
No doubt many of us are truly concerned with respecting the individual and his desire to be remembered with dignity as he dies. But we might have another valid concern – our sense of responsibility or guilt for carrying out the procedure. Distinguishing between these motives may not be practically very useful. But for theoretical reasons we ought to ask whether it matters that we are flexing the pain of the inmate to shield society from the gruesome spectacle of state-sponsored killing.
- Baze v. Rees, 128 S.Ct. 1520, 1523 (2008). See also, id. at 1533 – 1534.
- Baze v. Rees, 128 S.Ct. at 1524.
- Campbell v. Wood, 511 U.S. 1119, 1119 (1994) quoting Martin Gardner, Executions and Indignities-An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L. J. 96, 120 (1978).
- Baze at 1544 (J. Stevens, concurring)