Articles in the media this week have reported on the SCOTUS ruling giving a stay of execution to a Texas death row inmate and its effects on executions around the country. A nice review of the legal confusion can be found here at the Sentencing Law and Policy blog. Two blurbs from yesterday and today's NYT caught my eye, possibly suggesting that neuroscience may help inform whether or not lethal injections are cruel and unusual, by determining if inmates are conscious or experiencing pain.
In Alabama, where politicians rarely challenge the death penalty, the state is developing a “consciousness awareness test” for inmates being executed, but state officials maintained that the action was unconnected to the Supreme Court decision.
“Somebody would come in and do something to assess consciousness, after the anesthesia is delivered,” Assistant Attorney General Clay Crenshaw said. For now, he said, "the consciousness-awareness is being done visually by the warden.” (NYT link)
Does anybody know a source for this "consciousness awareness test" being developed by Alabama? Perhaps it is the same as the "bispectral index monitor" used already in two executions:
Execution opponents say they believe North Carolina is the only state using a device common in operating rooms to measure brain activity. The state Corrections Department anesthetizes the inmates and waits for their brain activity to dip to a level indicating they are sedated before pushing in the lethal drug. (NYT link)
(The bispectral index monitor does not seem to have wide peer-reviewed acceptance in the medical community and is somewhat controversial as to its efficacy.)
Perhaps the Supreme Court will be receiving more amicus briefs from medical and neuroscientific associations if the assessment of inmate consciousness and pain experience proves central to the determination of the "cruel and unusual" status of lethal injection.