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Lethal Injection and Animal Euthanasia: A Fair Comparison?


Wednesday, Apr. 02, 2008

In January, the U.S. Supreme Court heard arguments in the Eighth Amendment case of Baze v. Rees. There, Ralph Baze and Robert C. Bowling challenged their sentences of death by lethal injection as cruel and unusual punishment.

The case is important because not only lethal injection itself, but the particular three-drug cocktail utilized in Kentucky and challenged by Baze and Bowling, is common to the federal government as well as to almost all of the states that have a death penalty. As a result, any ruling about the validity of Kentucky's execution protocols could have implications for capital punishment throughout the United States.

Challenges to lethal injection suggest that the barbiturate - intended to make the condemned person unconscious while the lethal chemicals take effect - does not always (and, in fact, often does not) protect the inmate from experiencing excruciating pain, caused primarily by the final drug administered (potassium chloride, which stops the heart).

Though many people oppose the death penalty across the board, the argument regarding lethal injection is more specific: It holds that this method of killing gives rise to an unnecessary and substantial risk of inflicting great pain and therefore violates the Constitution, even if capital punishment is not inherently unconstitutional.

The Claim that "Even Animals" Are Treated Better

One argument that surfaces repeatedly in debates about lethal injection revolves around a comparison with the practice of euthanizing pets. Opponents of the three-drug cocktail have claimed that one of the chemicals used was deemed inhumane by the American Veterinary Medical Association (AVMA) in connection with euthanizing animals.

This chemical, pancuronium bromide, is used in an execution to paralyze the inmate's muscles. Pancuronium bromide is generally the second of three drugs administered to the condemned, following the barbiturate/anesthetic and preceding potassium chloride, which causes cardiac arrest. A problem arises when the inmate receives insufficient anesthesia to maintain unconsciousness throughout the process. This problem is exacerbated by the fact that while the prisoner suffocates and then experiences a horrific burning sensation in his veins, his induced paralysis makes him unable to convey, through words or even facial expressions, the horrific suffering that he is experiencing. Instead, his face looks serene and relaxed, a "mask" concealing his agony.

The AVMA has noted at this site that it never specifically criticized the use of pancuronium bromide in animal euthanasia. However, it has indeed rejected the use of a paralytic combined with a barbiturate, on the ground that the paralytic may counteract the effects of the anesthesia if the two are administered simultaneously, thus bringing about terrible suffering.

There is no question that the expertise of veterinarians who regularly carry out the humane killing of pet animals could potentially provide information useful for the humane administration of execution by lethal injection (though the AVMA has disputed the relevance of their findings to the death penalty debate). Some opponents of lethal injection, however, have made a distinct point. They have argued that euthanasia protocols demonstrate a shocking reality - namely, that animals are treated more humanely than human beings undergoing lethal injection.

Those who take this view express outrage at the prospect of veterinarians exercising greater care in guarding against the suffering of mere dogs and cats than our society exercises in protecting the human beings in our custody. Clearly, the argument goes, we have our priorities badly distorted if we are placing the needs of animals over those of human beings. But is that a fair characterization of the facts?

Execution versus Euthanasia

Some lethal injection opponents appear to conceive of the primary difference between euthanizing pets and executing condemned prisoners as that between our treatment, respectively, of non-human animals, on the one hand, and human beings, on the other. As a matter of rhetoric, it appears that we are treating condemned prisoners as "sub-human," because animal deaths are apparently more humane than theirs.

Quite apart from the species line, however, there is a salient and overlooked distinction between putting an animal companion to sleep when he is sick and in pain and imposing the ultimate punishment on a convicted murderer. It should not shock anyone to learn that a person who has lived with a pet animal for years would prioritize the animal's comfort over that of a human being - a stranger - who has deprived another human being of her life and whom a jury has seen fit to sentence to death.

The relevant distinction is therefore not between animals and human beings but between companions and criminals. Considering the difference between execution and euthanasia along these lines, it is not at all surprising that we might treat our pets better in some respects than we do convicted murderers.

Indeed, most people would be disturbed to learn that a family brought home a dog or a cat from a shelter and then proceeded to treat him or her like a violent criminal -- even a criminal sentenced to life imprisonment rather than death. Should people restrict a pet's access to exercise, social time, and fun or otherwise attempt to make him or her feel "punished"? Obviously not.

Pets versus Meat

If one is truly interested in studying the officially-sanctioned treatment of animals, there exists a far more informative contrast than any we might draw between animal companions and convicted murderers. It is the distinction between how we treat the animals for whom we care - our pets - and how we treat the animals whom we utilize - farmed animals. After considering that contrast, it becomes clear that death row inmates - human strangers for whom we care little - do a lot better than the animals who do not share our homes.

For pets, the animals who live with us and our families, we not only attempt to provide a humane death but we recognize, through the force of law, that they have legally cognizable interests that demand consideration and respect. As one example, the law punishes people who abuse or neglect the basic needs of their animal companions. Having a pet involves not only property rights over an animal but responsibilities as well. Though the obligations at issue may often be honored in the breach, the law does codify those responsibilities.

Notwithstanding our acknowledged obligation to satisfy the basic needs of our animal companions and to refrain from cruelty against them, there is little in the way of cruelty that we cannot or do not visit on the animals we use for meat and clothing. Such animals - including mammals, such as pigs, who greatly resemble the animals we keep as companions (not to mention ourselves) in their social nature and in their capacity for fear, pain, and joy - live in cramped, filthy, dark, and unhealthful surroundings and are separated from their young and suffer unregulated surgeries (like tail croppings and castration) without any anesthesia. These animals ultimately die a terrifying and painful death, however well-hidden from public scrutiny. The Animal Welfare Law notably does not even apply to animals raised for food.

It is here that we learn how we treat "mere animals" who fall outside our circle of concern. The application of the Eighth Amendment to condemned prisoners thus shows how much greater is our solicitude toward even the most despised human beings in our midst than for the vast majority of animals.

Rather than proving that people treat animals better than they do their fellow human beings, then, the humane killing of pets represents the exception that proves the rule. Pets are the honorary family members who are officially exempt from the casually vicious treatment reserved for the remainder of animal-kind. As Isaac Bashevis Singer wrote, "[a]ll other creatures were created merely to provide him [the human being] with food, pelts, to be tormented, exterminated. In relation to them, all people are Nazis; for the animals it is an eternal Treblinka."

What our humane treatment of pets illustrates, then, is that we - at some level - understand the basic entitlements of every sentient creature, whether human or not, even as we violate these entitlements with abandon for the overwhelming majority of living creatures. This recognition has driven reform of the death penalty over the years, though such reform has yet to be fully realized. For animals, however, this recognition has yielded little progress, as the meat industry grows larger and becomes more intensively concentrated over time.

Lessons of Euthanasia

Despite the important distinctions to be drawn between pets and condemned murders and between pets and animals generally, the humane approach to euthanizing pets may nonetheless be instructive to the Supreme Court as it considers execution by lethal injection. It reminds us that it is indeed possible to end life without causing excruciating pain, if we are so inclined. To the extent that the death penalty is lawful only so long as it is humane, that possibility becomes crucial. If alternatives exist to the current protocol, as we know they do, then the pain inflicted by the three-drug cocktail should rightly be seen as gratuitous and unlawful. Surely, a routinely painful form of execution is unnecessarily cruel if it can easily be replaced with a method that is painless.

Ultimately, then, the humane euthanasia of suffering pets teaches us that we can do better by our death row population, even if we are not yet prepared to abolish capital punishment. At the same time, it should teach us that we can do far better by the domesticated animals on whom we blithely and unnecessarily inflict suffering and death in the cause of satisfying our appetite for flesh. The planned death of a beloved pet helps show us just how far we have to travel to make the truly humane treatment of animals a reality.

Sherry F. Colb, a FindLaw columnist, is currently a Visiting Professor at Columbia Law School and will be joining the Cornell Law School faculty in the fall. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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