Project for Medical Jurisprudence under Prof. James Dennis C. Gumpal, M.D.

Related Modules: Death and Dying, and Drugs.

A PRIMER ON LETHAL INJECTION

Carlo Robert M. Mercado

No person shall be deprived of life, liberty,

or property without due process of law.
Art. III (Bill of Rights), Sec. 1, 1987
Constitution

Excessive fines shall not be imposed, nor

cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons
involving heinous crimes, the Congress
hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion
perpetua.
Art. III (Bill of Rights), Sec. 19(1), 1987
Constitution

I. INTRODUCTION

This primer will provide an introduction to lethal injection as a method of imposing the
death penalty, how it is usually performed, its legal status, its history, and its possible re-emergence
in the Philippine legal system.

II. SCOPE

The primer will not discuss the policy arguments for and against death penalty in general
nor lethal injection in particular, nor is intended as arguing for any side in the law or application
to the facts of the cases discussed hereinafter.

III. THE MEDICAL ASPECT

A. How performed1

This section will outline the drugs used and the process of performing the lethal injection.

1State by State Lethal Injection, at https://deathpenaltyinfo.org/state-lethal-injection; How does lethal injection work?, at
http://scienceline.org/2007/11/ask-sergo-deathpenalty/.
1. Drugs used

The drugs used in most standard lethal injections are the following: pentobarbital,
midazolam, sodium thiopental, pancuronium bromide or vecuronium bromide, and potassium
chloride. These drugs have other known uses aside from the lethal injection.

2. Method

The standard protocol for lethal injection in most states involves a sequence of three shots
that are delivered via intravenous drips inserted in each arm. There are however, states that
perform a two-step or single shot method.

The first to be injected is the anaesthetic, sodium thiopental, intended to render the
person unconscious until the end of the process. The second drug, pancuronium bromide (or
in some cases, vecuronium bromide), is a muscle-relaxant. The third, potassium chloride,
intended to stop the heart. Each drug administered is intended to be at a fatal dose and aims to
terminate the life by a combination of cardiac and respiratory arrest.

In 2002, it was estimated that the average length of time of the process, from the first
injection to death of the convict, is 8.4 minutes.2

B. When things go wrong

Few things are ever 100% effective, and the lethal injection is likewise not a fool-proof
method of execution. Three percent (3%) of U.S. executions in the period from 1890 to 2010
were botchedeither the person was not killed or the execution took longer than would be
intended, or that there were indications that the person executed suffered for some time during
the process. Of each method, lethal injection had the highest rate of botching with 7.12%, or 75
of 1,054 instances.3

Those several instances usually occurred where the IV was incorrectly set up, which
prolonged the process and lengthened the time it took to kill the person, or despite the drugs
already being administered, taking close to two hours to kill the person who was gasping for air
the entire time, or subsequent drugs being introduced without the person having been fully
sedated or unconscious, showing visible signs of struggle from the person long before dying.4

2 Id., citing JOURNAL OF FORENSIC SCIENCE, available at

http://journalsip.astm.org/JOURNALS/FORENSIC/PAGES/4102.htm.
3 Botched executions, at https://deathpenaltyinfo.org/some-examples-post-furman-botched-

executions?scid=8&did=478; AUSTIN SARAT, GRUESOME SPECTACLES: BOTCHED EXECUTIONS AND AMERICA'S

DEATH PENALTY, Stanford Univ. Press (2014).
4 Botched executions, id.
 IV. THE LEGAL ASPECT

A. In foreign jurisdictions

1. United States

In the United States, each individual State imposes its own set of criminal laws, and thus
varying regimes for the death penalty and the use of lethal injection exist, with a majority of the
States possessing death penalty laws. Insofar as the standard method of performing the lethal
injection is concerned, the same is not deemed to contravene the Eighth Amendment of the
United States Constitution as held in the cases of Baze v. Rees5, where it was ruled (in a 7-2 vote)
that Kentuckys three-drug lethal injection protocol did not amount to cruel and unusual
punishment, and Glossip v. Gross,6 where the use of the drug midazolam was held (in a 5-4 vote) to
not contravene the said Constitutional amendment.

2. ASEAN countries

ASEAN member-nations that have death penalty via lethal injection in their statutes are
Thailand and Vietnam7

3. Others

Other countries that use lethal injection include China, Guatemala, and Taiwan (never
implemented)8

B. In the Philippines

1. Pre-1987 Constitution

Prior to the 1987 Constitution, the penalty of death was executed by means such as firing
squad, and electric chair 9

5 Baze v. Rees, 553 U.S. 35 (2008).

6 Glossip v. Gross, 576 U.S (2015).
7 These are the countries still using lethal injection to kill people, at https://www.pri.org/stories/2014-05-07/these-are-countries-

still-using-lethal-injection-kill-people.
8 Id.
9 See A timeline of death penalty in the Philippines, at http://pcij.org/blog/2006/04/18/a-timeline-of-death-penalty-in-the-

philippines.
2. 1987 Constitution

The imposition of the death penalty was suspended by the 1987 Constitution,10 Article III,
Sec. 19(1) thereof stating: Neither shall death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion perpetua. Thus, it was left for Congress to determine if
and when, and for which heinous crimes the death penalty will be reimposed. By extension, lethal
injection was no longer used

3. Re-imposition of the death penalty

In 1993, the death penalty was re-introduced by Rep. Act. No. 765911, for heinous crimes
which Congress determined had compelling reasons for imposition. No mention of the lethal
injection was made in the entire law, the methods mentioned in Section 24 of the said law being
electrocution and gas poisoning (conditioned on the proper facilities were provided, which never
happened)12

In 1996, Rep. Act No. 8177 13, amended Article 81 of the Revised Penal Code, as amended
by Rep. Act. No. 7659, constituting the lethal injection as the sole method of execution to cause
instantaneous death:

Art. 81. When and how the death penalty is to be executed. The death sentence shall be
executed with preference to any other penalty and shall consist in putting the
person under the sentence to death by lethal injection. The death sentence
shall be executed under the authority of the Director of the Bureau of Corrections,
endeavoring so far as possible to mitigate the sufferings of the person under the
sentence during the lethal injection as well as during the proceedings prior to the
execution.
The Director of the Bureau of Corrections shall take steps to ensure that the lethal
injection to be administered is sufficient to cause the instantaneous death of
the convict. (Emphasis supplied)14

10 CONST. art. III, sec. 19(1).

11 Rep. Act. No. 7659 (1993). An Act to Impose the Death Penalty on Certain Heinous Crimes.
12 Sec. 24.
13 Rep. Act. No. 8177 (1996). An Act Designating Death by Lethal Injection as the Method of Carrying Out Capital

Punishment.
14 Sec. 81.
4. Prohibiting imposition of the death penalty

In 2006, Rep. Act No. 9346 prohibited the re-imposition of the death penalty, instead
imposting reclusion perpetua, or life imprisonment in its stead.15 Thus, the lethal injection as a method
of execution is shelved once again.

5. The move to re-introduce the death penalty

In 2017, the House of Representatives approved on third and final reading, 214 voting in
favor and 54 voting against, a bill seeking re-imposition of the death penalty, reserving it for some
drug-related crimes. Among the execution methods considered are hanging, firing squad, or lethal
injection.16

However, the bill appears to have no progress in the Senate and is reported unlikely to
pass the upper house17

V. CONCLUSION

Lethal injection is not new, just as the death penalty is not a recent creation. It has had a
legal, scientific and political history. The push to re-introduce the death penalty in Congress
makes these all the more relevant today. What is certain, in this case, is that it is not merely a
legal, nor merely a medical issue. It goes from the reliability of the methods used up to the very
purpose or propriety of performing it in the first place. Therefore, it is hoped that the lawmakers
of today will employ a holistic approach in tackling the issue of death penalty and its chosen
method of execution.

15 Rep. Act. No. 8177 (2006). An Act Prohibiting the Imposition of Death Penalty in the Philippines.
16 House passes death penalty bill on 3rd and final reading, at http://www.rappler.com/nation/163548-house-pass-death-
penalty-3rd-final-reading.
17 Death penalty bill already 'dead' in Senate Drilon, at http://www.rappler.com/nation/167966-death-penalty-bill-dead-

senate; Senators divided on fate of death penalty measure, at http://newsinfo.inquirer.net/878935/senators-divided-on-fate-of-

death-penalty-measure.