What's the Matter With the Death Penalty?


There have been three “botched” executions across the country in the last six months.

On January 16, Dennis McGuire in Ohio gasped for air for some 25 minutes before succumbing to Ohio's new two-drug lethal injection protocol.

On April 29, during Clayton D. Lockett's execution in Oklahoma, he “began breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow.” The director of the Oklahoma Department of Corrections halted the execution—Lockett died of a heart attack 43 minutes after the process began.

Just last week in Arizona, the execution of Joseph R. Wood, III began at 1:57 p.m. and he was pronounced dead at 3:49 p.m. The execution did not go as planned.

“I've witnessed a number of executions before and I've never seen anything like this,” Dale Baich, one of Wood's attorneys, told The Washington Post. “Nor has an execution that I observed taken this long.”

Stephanie Grisham, spokeswoman for the Arizona attorney general's office took a contrary position. “I'm telling you he was snoring,” she told the Arizona Republic. “There was no gasping or snorting. Nothing. He looked like he was asleep.”

Even those witnessing the execution couldn't agree on what happened.

One thing for sure: the three executions described here were not what Americans have come to expect from lethal injection—the accepted and antiseptic form of state-sponsored death.

Since 2009, when Ohio Governor Ted Strickland stopped Romell Broom's execution because prison personnel took more than two “painful” hours to search for a suitable vein, executions have been more or less routine, sterile and swift.

Between Broom and McGuire there were 170 lethal injection executions (not to mention two electrocutions and a firing squad) without incident. All of those executions were uneventful and swift. For some, it was too swift and too easy.

In researching my book “The Executioner's Toll, 2010,” I found that some of the victims' families were struck by the ease with which the condemned slipped into a lethal slumber.

“I think the way he went . . .” a family member said as she paused, breaking into tears, “It was too easy for him.”

“It was like laying down and going to sleep,” said the relative of another murder victim.

Speaking after his daughter's killer was executed, an angry father put it this way, “I wish my daughter could have died the way he died today. Wasn’t no pain.”

What is different today than in 2010?

As states scrambled to obtain increasingly scare execution drugs, new compounds were being used in new combinations. Within two months of Broom's failed execution in Ohio, the state carried out a single-drug execution using sodium thiopental.

Prior to Broom, every state used a similar lethal three-drug cocktail to carry out executions. But, in 2010, Oklahoma changed the drugs in its execution protocol to include midazolam; in 2011 Ohio switched to a single dose of pentobarbital; in 2013 Florida changed the drugs in its three drug protocol; in 2014 Ohio switched to a two-drug protocol to include midazolam; this year Arizona switched its protocol to include midazolam.

Lethal injection has been around since 1982, when Texas first used the method touted as the most humane way to carry out an execution. The U.S. Supreme Court agreed. In 2008, the Supreme Court decided in Baze v. Rees. The opinion written by Chief Justice John Roberts ruled that lethal injection was humane and constitutional.

However, Justice John Paul Stevens made an interesting observation in a concurring opinion in Baze. “I am now convinced,” he wrote, “that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.”

The paralytic agent was added to the original three drug protocol not because it made the execution more humane for the condemned offender, but because it made the execution more tolerable for witnesses.

State officials did not want the inmate to squirm, gyrate and writhe during the process—offending the sensibilities of those observing.

Should states be concerned with those sensibilities?

Just before Woods' execution in Arizona, U.S. 9th Circuit Court Chief Judge Alex Kozinski dissented to an order halting his execution. He wrote: “Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and beautiful—like something any one of us might experience in our final moments.”

And he added: “Executions are, in fact, brutal, savage events, and nothing the state tries to do can mask that reality.”

Kosinski told the Los Angeles Times he would scrap lethal injection for other forms of execution.

“I personally think we should go to the guillotine, but shooting is probably the right way to go.”

The guillotine was quick and “pretty much foolproof,” he said, but probably would not be accepted by the public. A firing squad would be “messy but effective.”

The guillotine has never been used in the U.S. in a state sanctioned execution. However, the firing squad is not that far-fetched. Ronnie Lee Gardner was executed by firing squad in Utah in 2010. In fact, Deborah W. Denno, a law professor at Fordham University and an expert on the death penalty told the New York Times the most humane way to carry out the death penalty is through the use of a firing squad.

Denno said the firing squad is quick, effective and affordable.

“It's the most humane procedure,” he said.

Earlier this month, U.S. District Judge Cormac Carney ruled in Jones v. Chappell that California’s death penalty violates the Eighth Amendment ban on cruel and unusual punishment, reported the Los Angles Times. The state's death penalty, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.

Has the death penalty come full circle?

In Furman v. Georgia, the 1972 decision that struck down the death penalty, Justice Potter Stewart wrote: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

Justice Potter further noted, “I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

Carrying out an execution today is as freakishly arbitrary as imposing the death penalty was in 1972. There are about 742 inmates on California's death row, a state that has not carried out an execution in more than eight years.

If one of those inmates is suddenly scheduled for execution—wouldn't that be a lot like being struck by lightning?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was recently released by McFarland & Company. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino).

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