Crime, Death Penalty

The Arkansas Death Penalty Debacle

How can anyone be killed without it being "cruel and unusual"?

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800px-SQ_Lethal_Injection_RoomI’ve never written about the death penalty.  The subject is complex and more deserving of a book than an 800-word comment.  Ethically, morally, and even technically (how do we kill?), it involves nuance and paradox.  Chief among these, how do we execute people in a way that doesn’t violate the 8th Amendment’s ban on cruel and unusual punishment?

How can anyone be killed without it being “cruel and unusual”?

Apparently, according to the recent flurry of articles on the subject, many states have determined that murder by lethal injection is less cruel than a firing squad, hanging, electrocution, or gas.

But what if the lethal injection doesn’t work right and the man set to be executed dies in pain after a full 40 minutes, as in the case of Clayton Lockett, sentenced to death in Oklahoma and executed in 2014.  He regained consciousness after the cocktail of injections set to first sedate him, then paralyze him, then stop his heart, started coursing through his veins.  He actually spoke (or muttered sounds) midway through the process and only passed away of a heart attack after 40 minutes.  (Prison officials debated about whether they should take him to a hospital in the interim.) Lockett’s stepmother, present to witness the execution, asked prison officials whether the process would be painful. She told them, “I know he is scared. But he said he’s not scared of the dying as much as the drugs administered.”  Turned out, he was right.

Or there’s Dennis McGuire, executed in Ohio in January 2014.  In the 24 minutes it took for the lethal injection to take effect, he lay gasping and choking, most likely in severe pain and clearly not fully sedated.  This past December, Robert Bert Smith was executed in Alabama, dying only after coughing and heaving in spite of the administration of the sedative meant to act as an anesthetic.

All of these cases involved the controversial use of a benzodiazepine known as midazolam.  In efforts to make executions less “cruel and unusual,” many states turned to this drug as the sedative portion of the two- or three-part procedure used to supposedly make the actual stopping of the heart less painful.

Prison officials started using midazolam after manufacturers of pentobarbital disallowed that drug’s use for executions.  In part it was a protest against the association of their drug with the administration of death.

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Many manufacturers (but not all) of midazolam have also expressly stopped selling the drug to prisons, aware that it may not work effectively in tamping the pain associated with lethal-injection killings.

This was the subject of much debate in recent weeks as the State of Arkansas rushed to use its store of midazolam before its expiration date at the end of April to execute eight inmates over the course of 11 days.

It would have been the largest execution spree over the shortest amount of time in U.S. history — all because of a “use-by” date.  Seems a bit cruel and unusual to me.  Especially considering that according to the International Drug Price Indicator Guide, the drug is inexpensive and, although hard to find for executions, available.

Last week, the Supreme Court refused to spare the life of one of the men, Ledell Lee, sentenced to death in 1995.  It had been a 4-to-4 split until Justice Neil Gorsuch took the bench and in one of his first decisions, agreed with the other four conservative judges that no legal issues stood between Mr. Lee and his execution.

Which brings us back to the issue of cruel and unusual punishment.  In 2014, the Supreme Court ruled in Glossip v. Gross that midazolam was not a form of cruel and unusual punishment.  Penned by Judge Samuel Alito and joined by the four other conservative judges, the court reasoned that there was no better drug that could be used in the sedation phase and that unless an execution method was “deliberately designed to inflict pain,” it could not be considered cruel and unusual (citing Baze v. Rees, 553 U.S. 35).

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In her dissent, Judge Sonia Sotomayor argued that without effective sedation in the first phase of execution, the next two drugs administered to paralyze the inmate and then stop his heart “do so in a torturous manner, causing burning and searing pain. It is thus critical that the first drug, midazolam, do what it is supposed to do, which is to render and keep the inmate unconscious,” otherwise, she reasoned, it would be cruel and unusual.

The other side of the death penalty debate is the camp that feels this way: Who cares what pain the condemned man experiences?  He chose to kill someone often in a brutal manner; he was found guilty; he’s a menace to society, tough on him.

While I don’t personally agree with the sentiments, I understand them.  But even excluding the possibility that some of those condemned may not have committed the crime for which they were convicted (worthy of a book in and of itself), and even assuming the people put to death are truly guilty, the Constitution protects everyone against cruel and unusual punishment, not just the innocent. (Presumably, it’s the guilty who need the protection most.)

While we try to make the killing of condemned men as antiseptic as possible, there’s only so much clean-up that can be done with a practice that by its very nature is cruel.  Why?  Because by its nature, it’s the taking of life before that person’s body is ready to be taken (such as by old age or disease).

Perhaps a more honest way to do it is a return to the firing squads.  Make the killing just as gruesome as it truly is.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.

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