Lethal injection is, in some states, a three-step process, with the first step involving a sedative meant to render the patient unconscious before the following lethal drugs are administered.
If their sedative does not work properly in the lethal injection process, the physical pain that these inmates could endure from the chemicals would definitely constitute torture, Bessler argued.
In the 2015 case of Glossip v. Gross, the Supreme Court ruled 5-4 against the inmate Richard Glossip who claimed that the sedative Midazolam, used by Oklahoma in executions, was not certain to work properly and could result in a painful execution that violated the Eighth Amendment's prohibition on cruel and unusual punishment.
Justice Sonya Sotomayor dissented and argued that Midazolam might not work as intended and thus would not sufficiently dull the pain inflicted on the subject's body by the ensuing drug potassium chloride.
As a result, the painful effect of the drugs could essentially result in "the chemical equivalent of being burned at the stake" if Midazolam does not work, Sotomayor stated. The inventor of Midazolam, Dr. Armin Walser, has stated that he does not want it used for executions.
Recent Supreme Court cases on the death penalty have shown an "obsession with will there be physically excruciating pain" for an inmate at the time of death, Bessler noted.
However, the psychological state of inmates awaiting death could also be torturous, he added: "the helpless of the condemned person on the gurney is one of the elements of torture."
And it was Justice Stephen Breyer's dissent in Glossip that "really does start thinking about the psychological aspect of what we're doing with use of the death penalty," Bessler noted.
First, Breyer wrote of how prisoners on death row are kept in solitary confinement for most of the day – a practice that, if carried out over weeks or months, could damage the psyche of an inmate. Breyer cited studies that show prolonged solitary confinement to cause serious psychological problems like hallucinations and stupors.
And inmates on death row can often be kept in solitary confinement. However, "the dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out," Breyer wrote.
And this condition can be prolonged for years or even decades due to modern policies regarding death sentences. Laws require reviews of death sentences and evidence of crimes, and appeals can be filed, but this extends the time inmates spend on death row waiting for their execution.
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The average time between sentencing and execution has steadily grown to its peak of 198 months in 2011 – or 16 and a half years – before falling slightly to 190 months in 2012, the Death Penalty Information Center noted. In one case of Brandon Jones, executed in February of 2016 by Georgia, he was on death row for 36 years after receiving a death sentence in 1979.
"Psychologists and lawyers in the United States and elsewhere have argued that protracted periods in the confines of death row can make inmates suicidal, delusional and insane," the Death Penalty Information Center says, noting that some experts have even called such a condition the "death row phenomenon."
Breyer, in his dissent, had referenced an 1890 Supreme Court opinion that found "when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it."
When considering whether the death penalty meets the criteria for cruel and unusual punishment barred by the Eighth Amendment, the Supreme Court must also consider the possibility that it is psychological torture, Bessler insisted.
"Even if you could guarantee a pain-free execution," he said, "the concept of torture includes psychological torture in the modern era, and that's something that the courts in the United States have not yet wrestled with head-on, and they need to."
Bessler argued that in private cases, under "common parlance" when a murder is described as a "torture murder," the factor "turns a first-degree murder into a 'torture murder' is the awareness of one's impending death."