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The culture war about euthanasia in Canada has been roaring a bit, almost a decade after they began implementing the program. However, I'm not particularly interested in the current Canadian culture war on this topic; instead, I'm curious about a related topic in the US culture war.
I saw this chart being bandied about, describing the procedure. I hadn't really thought about how the procedure actually works. It seems that you can either choose a route like this, where a series of chemicals are injected by a doctor, or a route where you self-administer some oral drugs. My first thought for this route was, "That sounds a lot like what they use in the US for capital punishment." My Duck-Duck-fu quickly hit my lack of knowledge of pharmacology as I was trying to figure out if they were actually the same drugs or not. It seems like they're at least quite similar. From here, they list midazolam, propofol, and rocuronium as being used in MAID. Some examples from my searching includes things from Wikipedia like, for midazolam:
For propofol:
For rocuronium, I can't even figure out if it's the same thing as rocuronium bromide or if they're different, but while Wikipedia doesn't have an article for the former, it has for the latter:
I followed the litigation in the US some years back around the death penalty, and I was aware that there was a concerted effort to pressure drug manufacturers to stop selling whatever drugs were used to states who would use them for executions. I also remember many of the arguments being that such injections constituted cruel and unusual treatment, particularly focusing on the X% or whatever risk that something went wrong or something didn't work quite right for this person or that person. (As an aside, literally none of the Canadian websites I've seen on MAID say a single word about any risk of things not going swimmingly.)
My question is if anyone is familiar with more recent developments in the US. Have there been any reasonably big cases that are more recent (than probably 5-10yrs ago)? In any of those cases, was a US state able to successfully point to Canada's program in order to argue that the risk was low and that it should not constitute cruel/unusual punishment? Are there actual meaningful differences in the drugs used that have been argued in court? (Are those differences due to the pressure on drug manufacturers?) Have the anti-death penalty advocates just given up on that argument and focused their efforts more on pressuring the manufacturers? Basically, if we were to draw a "territory control map" for the US litigation/culture war, what does the current state look like?
I don't understand why inert gas asphyxiation isn't used for executions or voluntary euthanasia anywhere. Just build a small room and fill it with nitrogen. Trivial. The person just loses consciousness peacefully and doesn't even notice anything.
I believe Oklahoma is working on the use of inert gas asphyxiation for capital punishment.
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I think the Holocaust gas chambers make it so that dying from gas seems horrifying to many people. Also, you have volition when you're taking drugs or a doctor is injecting you - you know exactly what's going on and can theoretically stop it. With gas it feels more sinister because it's less obvious.
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‘Cruel and unusual punishment’ arguments against the death penalty by inmates are just delaying tactics, with the rare exception of convicts requesting to be shot rather than face lethal injection(which sometimes works). Lawyers keep making these arguments largely because they haven’t been declared frivolous and they’re required to represent the client, and convicts keep making them because they have an obvious interest in delaying their own executions.
Why drug manufacturers give into anti-death penalty lobbying I don’t know, but the people doing the lobbying are mostly just opposed to the death penalty and technical arguments about the nature or effect of the drugs is a distraction.
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In all cases where the combination of drugs is being argued, it's a purely bad faith argument from people that are against all executions. There is no combination of drugs that can be used which will satisfy people who are against the death penalty, because they're against the death penalty. The only reason to argue about the drugs is to create an additional legal obstacle, tie executions up in courts longer, and cost the state more money. Any strategy for addressing these arguments has to start with the knowledge that the opponents doesn't actually care whether the drugs used are particularly cruel and unusual.
I believe you are overlooking the category of bad-faith arguments which don't care about all executions--just their own. Defense lawyers are obligated to try any and every strategy, and cruel/unusual defenses are still considered. This probably has something to do with decades of highly visible failures across methods.
Perhaps more importantly, it doesn't really matter whether those opponents actually care, only what the judge and jury think. Pointing to Canada's program won't convince death row inmates to lie down and take it, but it may satisfy the letter of the law.
Good point regarding defense lawyers.
Regarding the convincing of judges, I simply don't believe that they're actually making a good faith consideration of the merits either. Some judges are in favor of the death penalty, some are against, and they will rule accordingly to the extent that they can get away with it. There is still value in making convincing argument to the extent that it permits a judge to go in the direction they'd prefer, but I would be absolutely shocked to find that death penalties are administered or not based on judges that genuinely don't know which way they'd like to rule prior to hearing the facts. Of course, this isn't just a death penalty thing - listening to just about any of the Supreme Court hearings leaves me rolling my eyes at the justices plainly looking for excuses to side with their preferred side.
Judge Posner Richard, known for his work on economic theory of law, admitted as much:
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And then going on to argue that since enacting a death penalty is so expensive, it should be abolished; purely as a cost saving measure, of course.
This is a popular anti-nuclear argument as well.
Step 1) Pass punitive regulation that makes nuclear impossibly expensive
Step 2) Argue that nuclear should be shut down because it's too expensive
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I can't speak to your other questions but I would be fairly surprised if this argument were persuasive in a US court. Primarily because it's not clear what relationship Canadian legislative decisions have to American constitutional interpretation. Is the argument supposed to be that any method of execution Canada legalizes for voluntary euthanasia cannot be "cruel and unusual" within the meaning of the 8th amendment? What if Canada specifically legalizes a method because of its cruel-and-unusual-ness? Perhaps as a deterrent to people seeking it.
More generally I think the conclusion of your argument (death penalty is not cruel and unusual punishment within the meaning of the 8th amendment) and the method of argumentation (based on a contemporary understanding of the term "cruel and unusual") are misaligned with the way these two features often are in American jurisprudence today.
My impression is that judges who would agree with your conclusion tend to be constitutional originalists. They are committed to the proposition that the term "cruel and unusual" in the constitution means the same thing now that it did when the constitution was adopted. Since punishments like hanging or firing squad were permissible then, it's hard to see how "drug cocktail that puts you to sleep then stops your heart" is "cruel and unusual" by comparison. This group perhaps likes your conclusion but is opposed to your method of analysis. Since the words "cruel and unusual" in the constitution have meant the same thing since the founding subsequent developments of Canadian law are of no relevance.
By contrast I think those more amenable to your methods (the use of contemporary understandings of constitutional terms) tend to be opposed to the death penalty in toto. For them it's not a question of what method is used for execution, the whole enterprise of putting people to death as punishment for a crime is unconstitutionally "cruel and unusual". If their arguments are method-agnostic then trying to argue that a particular method is not cruel and unusual is going to be fruitless.
This seems like it's pairing originalism with a decidedly modern manner of comparison. It seems quite plausible to me that someone from 200 or 300 years ago could find firing squads, hangings and even beheadings normal but at the same time find the way in which the administration of a lethal injection (performed, from what I have seen, by medical professionals who engage in all the ceremonium that is usually part of their job, carefully sterilising needles and all) perverts the life-giving medical process to kill rather than cure (in an apparently non-violent and thereby all the more insidious way) to be unusual and revulsive and therefore cruel by virtue of the shame being killed in such a fashion ought to bring upon everyone involved.
My understanding is that arguments along the lines you describe in your comment have been advanced (unsuccessfully) before the Supreme Court before. Some states have passed laws reintroducing execution by firing squad due to issues with accessing lethal injection drugs and out of a more general concern about the unavailability of lethal injection as a method of execution.
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Currently this may be the case, but things can change in the future. My impression is US courts are often concerned not just with the present facts but with the principles they are being asked to endorse. By way to describing this distinction I think most US courts would agree "the methods Canada currently employs for voluntary euthanasia are not 'cruel and unusual' punishment within the meaning of the 8th amendment." Certainly that has been the conclusion of our own Supreme Court. I also think most US courts would decline to endorse the principle OP appears to be pointing at, specifically "Canada having legalized a particular method of killing people for voluntary euthanasia implies that method of killing people is not 'cruel and unusual' punishment within the meaning of the 8th amendment." In the style of the Euthyphro dilemma it may be that Canada's methods of voluntary euthanasia are not cruel and unusual, but whatever makes them not-cruel-and-unusual is not the fact that they are Canada's methods of voluntary euthanasia.
My recollection of current jurisprudence is that the left-leaning justices are more inclined to cite international practice, while the right tends to lean on Originalism (Constitutional literalism, frequently) and occasionally English Common Law circa 1776. I don't think your idea is wrong, but I don't see the conservative justices being willing to cite international precedent or the liberals arguing for any application of the death penalty.
Honestly, IMO the death penalty isn't worth the (legal, mostly) hassle in most cases. But if it were, inert gas asphyxiation seems like it would be ideal but for the huge legal fight over approving a new method.
Why not just use existing inhalational anaesthetic agents? Just don't add oxygen to the mixture and let hypoxia kill the condemned. You could even use stuff like halothane, since its side effects are irrelevant. Although I guess it would be equivalent to the one-drug lethal injection method, where they OD the condemned on pentobarbital.
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Isn’t Oklahoma working slowly towards the use of inert gas asphyxiation?
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