Mostly Plants

In an article published this morning on Findlaw, Sherry Colb argues that comparisons of death penalty methods against animal euthanasia are fundamentally inapt. She responds to those of us who have cited the American Veterinary Medical Association (AVMA) euthanasia standards in the death penalty debate by saying that nobody should be surprised that the most-beloved of quadrupeds are treated better than the most-hated of bipeds, and that we should look as well at how we treat animals raised for meat—far worse than condemned inmates awaiting death.

I agree in part with Professor Colb’s ultimate conclusion—that the veterinary literature teaches us how inhumane the three-drug lethal injection protocol is—but she gives up too much in reaching that conclusion. Furthermore, her final section seems to suggest that humane killing is possible. I Based on my review of the legal, veterinary and medical literature, I disagree—but I will save elaborating on that point for a future post.

First, a semantic point: I refuse to use the verb “to execute” or the noun “execution” to mean “killing” or “to kill.” I think that those words distance us from the moral significance of the act, and that we should speak explicitly of what we refer to: we are talking about killing. We are talking about extinguishing the life of another human being. Unlike in the abortion context, that much is not debated here.

Euthanasia: The Last Act of Mercy to a Beloved Friend?

Professor Colb’s argument assumes that “euthanasia” is an act of mercy—something that happens to a pet dog or cat to end its suffering when it is already near death. Sometimes, but hardly always. The current version of the AVMA report that has been so widely discussed mentions not only euthanasia of pets but also research animals, zoo animals, and wild animals. And yes, Professor, they talk about meat animals, too. Even when the animal in question is a dog or a cat, many dogs and cats are killed because they are dangerous or simply because they are homeless. With this fallacious assumption out of the way, the only remaining distinction between animal euthanasia and the death penalty is that we assume the animals are morally blameless, and that the suffering of a human condemned to die is indeed part of the punishment—the inmate is so bad that their suffering is objectively good. I do not believe that our Eighth Amendment permits that interpretation, nor do I believe it is a morally correct one.

While the AVMA report does treat some groups of animals differently from others, it bases its conclusions on what methods are most comfortable for the animal—not on how much we like the animal. Whether the animal being killed is a dear friend or the rabid dog that has been terrorizing the neighborhood, potassium chloride injection without anæsthesia is “unacceptable and absolutely condemned.” (Page 12). Yet this is exactly what happens to a human victim when the barbiturate is improperly mixed, wrongly-dosed, or worn off by the time the potassium chloride is injected.

As a side note, the cover of the AVMA report (2007 edition) protests that it has nothing to do with capital punishment, that it makes no reference to the specific protocol used for human killings, and that it never refers by name to pancuronium bromide–the neuromuscular blocking agent used in the lethal cocktail. The lady doth protest too much. They do mention neuromuscular blocking agents generally, and they do discuss the combination of a neuromuscular blocking agent with a barbiturate, and say that the combination is “not an acceptable method of euthanasia.” It is difficult to imagine how adding Potassium Chloride would convert an unacceptable or condemned technique into an acceptable one.

We Treat our Meat Worse than our Murderers

This is true. That’s why I only occasionally eat meat, and that’s why I only buy humanely-raised meat. In this respect, Professor Colb’s article is more of a wakeup call than a defense. She concludes, 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. Amen, Professor.

Even as ghastly as the overall picture of the meat industry is, we do have norms of humane slaughter—though they are poorly-followed. And one of those norms—just as in the euthanasia and death penalty contexts—is that the procedure should minimize suffering.

The Question Before the Court

All of this is under discussion because of a case currently pending at the US Supreme Court–Baze v. Reese, in which the court will address the constitutionality of lethal injection for the first time. They have four questions presented, some narrower and others broader. I think the most interesting is number II: Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used? In other words, hypothesize two methods of killing: Method A and Method B. Both have a risk of pain and suffering, but method A has less risk. Does that make Method B unconstitutional? if the answer is yes, death penalty abolitionists will be able to engage the stats in a costly, sisyphesian game of changing methods every time an inmate or activist could imagine one with a lower risk. If not, abolitionists and inmates will have a more difficult time meeting the burden of proving that a given method is cruel and unusual—the exact scope of that burden to be given by the answer to Question I.

Professor Colb is right on this fundamental conclusion: the fact that our Veterinary community has gone so far in establishing best practices for killing some animals shows that the same could be done for others, be they human, bovine, swine, poultry, or whatever else. It is up to us as a people to walk down that road, or not.