Lethal Paralytics and the Censorship of Suffering

• Published in: Columbia journal of law and social problems 2023-10, Vol.57 (1), p.1-56
• Main Author: Brazer, Drew S
• Format: Article
• Language: English
• Subjects: Capital punishment; Censorship; Chloride; First Amendment-US; Imprisonment; Pain; Potassium; Protocol; Speech; Suffering; Unconsciousness; Witnesses
• ISSN: 0010-1923

Approximately two dozen states utilize a three-drug lethal injection method to execute condemned persons. This protocol consists of (i) an anesthetic or sedative; (ii) a paralytic; and (Hi) potassium chloride (which stops the heart). The purpose of the paralytic is purely cosmetic: it prevents witnesses from having to watch the condemned person convulse as they die. This Note argues that when a condemned person chooses to refuse a lethal paralytic, they are engaging in First Amendment-protected expressive speech. State regulations requiring the use of a paralytic warrant strict scrutiny because they (i) restrict speech based on subject matter; (ii) are a form of prior restraint; (Hi) discriminate based on viewpoint; and (iv) compel speech. The state's interest in requiring the paralytic-to censor the violence of the condemned person's death-is neither legitimate nor compelling. As such, lethal paralytic requirements fail strict scrutiny and violate the First Amendment. Part I of this Note outlines the history of capital punishment and the advent of lethal injection in the United States. It details the various constitutional challenges that have been brought to bear against lethal injection protocols generally, and the use of paralytics specifically. Part II examines the constitutional rights of incarcerated persons and considers whether an individual's decision to refuse a paralytic can be considered expressive speech under the Spence-Johnson test. Next, it contemplates the appropriate standard of review for regulations requiring the use of a paralytic. Finally, it examines whether lethal paralytic requirements can survive strict scrutiny or any lesser standard of review. Part III explores the policy implications of recognizing a condemned person's right to refuse lethal paralytics. Not only would acknowledging such a right advance the fundamental values of the First Amendment, it would also help to prevent needless pain and suffering.