VII. International Human Rights and U.S. Constitutional Law
The cornerstone of human rights is respect for the inherent dignity of all human beings and the inviolability of the human person. The Universal Declaration of Human Rights, the foundation for human rights law, is premised upon the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family.248 Human Rights Watch believes the inherent dignity of the person cannot be squared with the death penalty, a form of punishment unique in its cruelty and finality, and a punishment inevitably and universally plagued with arbitrariness, prejudice, and error. While international law does not prohibit capital punishment, the trend in law and practice is for its abolition.
States that do not abolish capital punishment must still abide by human rights standards in their choice of execution methods. The United States is a party to the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.249 While neither treaty prohibits capital punishment, the prohibitions in both against torture and cruel, inhuman, or degrading punishment apply to the manner in which executions are carried out.250
Human rights law imposes an obligation on states that impose capital punishment to use methods of execution that minimize pain and suffering. The U.N. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, approved by the Economic and Social Council in 1984, provides that where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.251
The Human Rights Committee (HRC), the body of experts that monitors state compliance with the ICCPR, has stated that when the death penalty is applied, it must be carried out in such a way as to cause the least possible physical and mental suffering.252 The HRC applied this standard in the case of Charles Chitat Ng, who fought extradition from Canada to the United States because he might face execution by lethal gas.253 After reviewing evidence concerning the manner by which lethal gas kills and the length of consciousness after asphyxiation begins, the committee concluded that execution by means of lethal gas would not meet the test of least possible physical and mental suffering, and it thus was cruel and inhuman.254
Similar standards have been adopted elsewhere. The European Union in 2001 adopted guidelines for combating torture that urge countries with the death penalty to ensure that the execution methods used cause the least possible physical and mental suffering.255
International human rights law thus requires public officials to forego an execution method in favor of alternatives that cause less or no suffering. Human Rights Watch also believes the law requires officials to choose the execution method that carries the least risk of suffering. If one method inherently has a riskeven a small oneof suffering, it should be eschewed in favor of a method that has no risk, or a smaller risk. In assessing the possibility of pain and suffering, public officials should consider not only risks inherent in a particular procedure, but the likelihood of mistakes or accidents.
Death penalty states do not satisfy their human rights responsibilities simply by choosing lethal injection over, for example, lethal gas. Rather, they must determine whether their particular lethal injection drug protocols and methods of administration cause the least possible physical and mental suffering compared to other possible drugs and methods of administration. Exercising human rights responsibilities requires a careful initial assessment, and then continual reassessment of the state of the art regarding anesthesia, analgesic, and death-inducing drugs, and incorporating the best available scientific and medical expertise into drug and administration protocols.
Human Rights Watch is not aware of any U.S. death-penalty state that has either met its international human rights obligations with regard to its choice of method of lethal injection or their ongoing use of that method. There is a growing body of evidence, as discussed above, suggesting that the three-drug protocol and methods of administration used by most states carry a foreseeable, albeit unquantifiable, risk of physical and mental suffering beyond that inherent in knowing one is being executed. The risk is not simply that which is inherent in any human endeavor, i.e., inevitable risks of accidents and errors. Rather, the risk exists because of deliberate choices made by public officials, including the specific drugs they have chosen, their failure to require that executioners possess appropriate training and experience, and their choice of haphazard and medically unsound procedures for the administration of the drugs.
Our research indicates that problems with lethal injection executions in the United States reflect the failure of public officials to take the steps necessary to meet international human rights standards:
Departments of corrections officials have rejected these suggestions. The only explanation we have uncovered for their insistence on using existing drug protocols may be that the current methods better serve the interests of the onlookersthe witnesses and executioners. If nothing goes wrong, the existing drug protocols kill the prisoner in a few minutes. By contrast, death from a single injection of a massive amount of a powerful barbiturate may take half an hour to forty-five minutes. The use of a paralytic agent ensures the prisoner will be perfectly still and apparently peacefulregardless of whether he is in fact conscious and experiencing pain. When the potassium chloride is administered, his body will not twitch or writhe on the table, as bodies may do when their hearts suddenly stop. Witnesses and those participating in the execution might be troubled by the sight of a prisoner convulsing during his execution. They might think those movements are a sign that the prisoner is experiencing distressor witnesses may simply find any movement by a prisoner being executed inherently disturbing.
Human Rights Watch understands public officials would like to protect the feelings and sensitivities of the executioners and witnesses. But human rights law requires them to place a higher priority on minimizing the pain and suffering of the condemned prisoners than on the comfort levels of those who do the killing and those who watch.
Under U.S. law, executions are unconstitutional if they involve the unnecessary and wanton infliction of pain257 or involve torture or lingering death.258 What constitutes unnecessary pain is informed by standards of decency as they evolve in light of contemporary human knowledge.259 Where the pain inflicted in an execution results from something more than the mere extinguishment of life, the Eighth Amendments prohibition against cruel and unusual punishment is implicated.260
Methods of execution once viewed as acceptable can, over time, come to offend Eighth Amendment standards, as scientific knowledge and societys norms evolve.261 As Judge Harry Blackmun explained, the emphasis [of the Eighth Amendment] is on mans basic dignity, on civilized precepts, and on the flexibility and improvement in standards of decency as society progresses and matures.262
Execution methods can violate the Eighth Amendment even though they are held out as humane alternatives, if they subject the condemned prisoner to the foreseeable likelihood of unnecessary pain or suffering. An isolated unforeseeable accident [does not] add an element of cruelty to an execution.263 But a foreseeable (or substantial) likelihood of unnecessary pain or suffering does violate the Constitutioneven if the suffering is not certain, or even likely, to occur in every instance.264
The Supreme Court has never directly addressed the constitutionality of any lethal injection protocol, although it has acknowledged that lethal injection is subject to Eighth Amendment requirements.265 Lower federal courts and state courts have continually rejected prisoners claims that their states particular lethal injection methods were cruel and unusual. Some courts concluded there was insufficient evidence of pain and suffering, or that a particular procedures risks were too slight to strike down lethal injection choices made by state legislatures and their correctional agencies.266 They reached those decisions without having permitted the prisoners to undertake extensive discovery and without conducting full evidentiary hearings.267 Other courts avoided ruling on the merits, holding instead that the prisoner did not raise his claims in a timely or proper manner.268 Courts have rarely examined the development or justification for the challenged protocols, nor have they explored whether a different lethal injection protocol might carry less risk than the ones currently maintained by the states.
We know of only one case in which a court rejected a Department of Corrections method for changing its protocols. A judge, on administrative grounds, struck down New Jerseys Department of Corrections proposed amendments to its lethal injection regulations, including the removal of an emergency cart from the execution setting.269 Under administrative law, a challenged regulation will stand if the state agency can show it meets a relatively low standard of rationality. Yet the court held that the new regulation about the emergency cart, which the New Jersey Department of Corrections justified as unnecessary because the irreversible nature of lethal injections made it impossible to revive a condemned inmate, lacked an expressed reasoned medical opinion.270 That is, the Department of Corrections had not come up with evidence that showed a sound basis for its decision. The court remanded the issue to the Department of Corrections to give it an opportunity to articulate a supporting basis for [its regulations].271
Under U.S. constitutional jurisprudence, the burden is on the prisoner to prove a method of lethal injection is cruel and unusual; public officials do not have to prove they have chosen the best possible method. Prisoners have been hampered in their efforts to challenge their states lethal injection execution protocols by the difficulty of obtaining documentation on how corrections officials developed their protocols and what happened during earlier executions. As noted above, some courts did not permit the prisoners to undertake much discovery. But in addition, states typically do not document their executions, e.g., keep records of the qualifications of the executioners or logs indicating the time at which the drugs were administered, whether there were any problems with the IV insertion or administration of the drugs, the monitoring of prisoners vital signs, etc. In other cases, even if prison officials did create such records, they were not retained over the years. Some states have simply refused to provide records that go back in time. They have even made it difficult for prisoners to simply obtain complete copies of the protocols themselves.272
Nevertheless, over the years, persistent lawyers have succeeded in obtaining an increasingly powerful set of evidence about problems with state lethal injection procedures. The impact of that evidence is apparent in the February 2006 decision by a federal district court regarding Californias lethal injection protocol (See Chapter Five).
For more than two decades, U.S. courts have been notably and increasingly hostile to challenges to the fairness of capital trials and sentences brought by prisoners sentenced to death. When prisoners began bringing cases challenging methods of execution, including the most recent challenges to lethal injection, the courts responded with what may best be characterized as judicial impatience and irritation. In the absence of guidance from the U.S. Supreme Court, lower courts saw the cases as simply another stalling tactic by death row prisoners and failed to give serious consideration to their claims.
The Supreme Court has now agreed to decide the case of Hill v. McDonough. The precise question the court will address in Hill is whether a prisoner may bring an Eighth Amendment challenge to Floridas lethal injection protocols by seeking declaratory and injunctive relief under 42 United States Code, Section 1983, the civil rights statute that enables plaintiffs to challenge the constitutionality of state actions in federal court.273 The lower courts held that a challenge to the lethal injection protocol was a challenge to the sentencewhich is a habeas case. They therefore concluded condemned prisoner Clarence Hill was not entitled to an evidentiary hearing or injunction, because the case he brought as a Section 1983 case should have been brought as a habeas petition. Moreover, even if it had been brought as a habeas case, it would nonetheless still have been barred under habeas rules unique to the post-conviction review of sentences.274 Petitioner Hill claims that he is challenging whether a specific lethal injection protocol is cruel and unusual, and he is not challenging the legality or constitutionality of his death sentence as such. Numerous amicus briefs have been filed in the case, urging the Court to recognize the importance of the underlying substantive claim by Hill and to ensure he is given a full opportunity to develop the evidentiary basis for it. Human Rights Watch has joined in an amicus brief bringing to the Courts attention the international human rights requirement that states must choose a method of execution that inflicts the least possible pain and suffering.275
Although the Hill case is ostensibly about the correct procedure by which a prisoner may challenge his method of execution, its significance may be far greater. The fact that the Supreme Court took the case signals the impact of the growing number of cases pressing federal and state courts to address challenges to lethal injection protocols.276 As evidence of problems mount, and as the background and development of lethal injection protocols is subjected to greater scrutiny, we hope that courts will be increasingly responsive to prisoners constitutional challenges.
 Preamble, Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
 Article 6 of the ICCPR on the right to life discusses the death penalty in countries that have not abolished it. Section 6 states that [n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. ICCPR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
 The U.N. Human Rights Committee (HRC) has noted that because the ICCPR does not prohibit the imposition of the death penalty in certain limited circumstances, capital punishment is not per se a violation of the prohibition on torture and other cruel punishment. Instead it is necessary to consider the facts and the circumstances of each case, including personal factors regarding the condemned person, conditions on death row, and whether the proposed method of execution is particularly abhorrent. Kindler v. Canada, HRC, communication no. 470/1991, U.N. Doc. CCPR/C/48/D/470/1991 (1993) (citing Soering v. United Kingdom, European Court of Human Rights).
 Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, E.S.C. res. 1984/50, annex, 1984 U.N. ESCOR Supp. (No. 1) at 33, U.N. Doc. E/1984/84 (1984), safeguard 9, http://www1.umn.edu/humanrts/instree/i8sgpr.htm (retrieved on April 11, 2006).
 ICCPR, General Comment 20, U.N. HRC, 44th Session, U.N. Doc ccpr/c/21/Add.3 (1992), p. 6.
 See Chitat Ng v. Canada, Communication No. 469/1991, U.N. Doc. CCPR/C/49/469/1991 (1994), http://www1.umn.edu/humanrts/undocs/html/dec469.htm (retrieved March 24, 2006).
 U.N. HRC, 49th Session, UN doc, CCPR/49/D/469 (1991), decision issued January 4, 1994.
 European Union, Guidelines to EU policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment, adopted by the EU General Affairs Council, Luxembourg, April 9, 2001, http://ue.eu.int/uedocs/cmsUpload/TortureGuidelines.pdf (retrieved March 14, 2006).
 Transcript, New Jersey Department of Corrections Public Hearings on Amendments to New Jerseys Lethal Injection Protocols, February 4, 2005, p. 33 (copy on file with Human Rights Watch).
 Gregg v. Georgia, 428 U.S. 153 173 (1976) (citing Furman v. Georgia, 408 U.S. 238, 392 (1972)).
 In Re Kemmler, 136 U.S. 436, 447 (1890).
 Robinson v. California, 370 U.S. 660, 666 (1962). See also Estelle v. Gamble, 429 U.S. 97, 102 (1976).
 Furman, 408 U.S. at 265 (quoting Kemmler, 136 U.S. at 447). The Eighth Amendment to the U.S. Constitution states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
 E.g., Fierro v. Gamble, 77 F.3d 301, 303 n.1 (Ninth Circuit 1996), vacated on other grounds, 519 U.S. 918 (1996) (noting in challenge to the constitutionality of execution by lethal gas, that California Supreme Court had last considered such a challenge in 1953, and that the courts consideration had been limited by then-existing scientific knowledge).
 Jackson v. Bishop, 404 F.2d 571,579 (Eighth Circuit 1968).
 Resweber, 329 U.S. at 464 (emphasis added).
 Campbell v. Wood, 18 F.3d 662, 687 (Ninth Circuit 1994) (en banc) (risk associated with challenged method of execution must be more than slight).
 Nelson v. Campbell, 541 U.S. 637 (2004).
 Hill v. Florida, No. SC06-2, 2006, Florida Lexis 8 (Florida, January 17, 2006).
 Brief of Appellant-Plaintiff, Taylor v. Crawford, et al., No. 06-1397, February 24, 2006, p. 33-34. See also Defendant Crawfords Answers to Plaintiffs First Interrogatory, Taylor v. Crawford, Case No. 05-4173-CV-C-SOW, September 12, 2005, p. 14-15.
 E.g., Gomez v. U.S. District Court for Northern District Of California, 503 U.S. 653, 654 (1992) (holding that particularly where an inmate has engaged in abusive delay, the court may consider the states interest in moving forward with the execution in balancing the inequities); LaGrand v. Stewart, 170 F.3d 1158, 1159 (Ninth Circuit 1999) (stating that petitioners challenge to execution method had previously been dismissed as premature because the method of execution had not yet been chosen); Beardslee, 395 F.3d at 1066-67 (stating that the fact that Beardslee waited until his execution was imminent, filing suit one month before his execution date, after it was already scheduled, weighed against him).
 In re Readoption with Amendments of Death Penalty Regulations by the New Jersey Department of Corrections, 367 New Jersey Sup. 61 (2004).
 Ibid., p. 69.
 Ibid., p. 71.
 Petitioners Brief, Hill v. McDonough, et al., March 6, 2006, p. 2-3.
 Ibid., p. 4-11.
 Brief amici curiaeof Human Rights Advocates, Human Rights Watch, and Minnesota Advocates for Human Rights in Support of Petitioner, Hill v. McDonough, No. 05-8794, March 3, 2006, http://hrw.org/us/us030706.pdf (retrieved April 16, 2006).
 As of April 1, 2006, there were eight death row inmates (including Morales and Hill) who had been granted stays of execution pending resolution of their challenges to lethal injection protocols. These stays included: Clarence Hill, Florida, by the U.S. Supreme Court; Arthur Rutherford, Florida, by the U.S. Supreme Court; Michael Taylor, Missouri, by the U.S. Supreme Court; Vernon Evans, Maryland, by the Maryland Court of Appeals; Michael Morales, California, by the State of California; Richard Tipton, Cory Johnson, and James Roane, Federal, District Court for District of Columbia. DPIC, Lethal Injections: Some Cases Stayed, Other Executions Proceed, http://www.deathpenaltyinfo.org/article.php?did=1686&scid=64 (retrieved on April 16, 2006). Ten other inmates did not receive stays and were executed by lethal injection. These were: Marion Dudley, executed in Texas on January 25, 2006; Marvin Bieglher, executed in Indiana on January 27, 2006; Jamie Elizalde, executed in Texas on January 31, 2006; Glenn Benner, executed in Ohio on February 7, 2006 (Benner did not raise a lethal injection claim); Robert Nelville, executed in Texas on February 8, 2006; Clyde Smith, executed in Texas on February 15, 2006; Tommie Hughes, executed in Texas on March 15, 2006; Patrick Moody, executed in North Carolina on March 17, 2006; Robert Salazar, executed in Texas on March 22, 2006; Kevin Kincy, executed in Texas on March 29, 2006. Ibid.