There’s only one way to reform the death penalty: Eliminate it
The final right of a prisoner condemned to death in our punitive justice system is the right, assured by the Eighth Amendment, against “cruel and unusual punishment” — to a death as quick and painless as possible when the punishment is administered.
The use of lethal drugs is the latest effort to assure a tranquil death for those we have found unfit to live.
But whom are we kidding?
As libertarian 9th Circuit Court of Appeals Judge Alex Kozinski starkly puts it, executions “are, in fact, nothing like that … and nothing the state tries to do can mask that reality.”
The most popular recent method of killing inmates is through lethal injection, once popularly believed to be a quiet and peaceful transition. Recent events, however, reveal a torturous end as inmates struggle for breath long after they should be dead.
Earlier this month, Joseph R. Wood lay dying on an Arizona death chamber gurney for two hours while he struggled for breath. Observers reported evidence that he did appear to suffer intensely up until his last breaths.
In a graphic description of the effects of a botched lethal injection, Emmanuelle Purdon wrote on the English anti-death penalty Reprieve.com blog: “Here’s how it works: after an anesthetic is injected to put the prisoner to sleep, a paralysing agent immobilizes him until a massive overdose of potassium chloride stops his heart. If the first drug fails — often the dose is too low or the IV is not inserted properly — the prisoner remains awake but paralysed. The pain is excruciating — like ‘fire burning in the veins’ — but the prisoner is frozen in silence, unable to move or cry out.”
As Michael Lee Wilson, executed in Texas earlier this year cried in his last minutes, “I feel my whole body burning.”
Early experiments using a three-drug combination seemed to achieve the desired effect, though the practice remained controversial. However, once manufacturers’ names became linked to the death penalty — a punishment practiced by the United States alone among advanced nations — many of them either ceased making the drugs in question, or refused to supply them to states that might use them for executions.
The result has been an influx of bad drugs that prolong the length of executions while failing to mitigate pain sufficiently to prevent extreme suffering by the prisoner.
The botched execution of Dennis McGuire, who took 25 minutes to die in Ohio earlier this year, caused him to gasp and choke while clenching his fists as he died.
The lengthy suffering of Arizona’s Joseph R. Wood, III earlier this month brought new attention to the charge that lethal injection executions are “cruel and unusual punishment.”
Kosinski’s dissent focused on the absurdity of trying to assure condemned criminals a quick, merciful and peaceful death by use of lethal injection.
“The enterprise is flawed,” Kosinski 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 peaceful — like something any one of us might experience in our final moments. But executions are, in fact, nothing like that.”
In the face of this kind of exposure, Wall Street Journal reporter Jacob Gershman explains, “Details on capital punishment have gone behind the curtain, a trend that states call necessary but death-penalty opponents contend allows execution methods that may violate the U.S. Constitution.”
“If we’re going to have a death penalty, the public should have a right to know about the process and how its money is being spent,” Dale Baich, lawyer for Wood, told Ashby Jones of the Wall Street Journal, “Anything short of this undermines credibility in the whole enterprise.”
“Fights over secrecy are here to stay,” Megan McCracken, a lawyer with the Death Penalty Clinic at the University of California, Berkeley, told Jones. “Courts have yet to resolve some very serious issues concerning the rights of condemned prisoners.”
The best way to solve some of those problems would be to outlaw the use of untested or unreliable drugs for executions, full disclosure to defendants and their lawyers as to what drugs will be used, and some accountability from those who botch executions.
Better yet: Eliminate the death penalty, which has little or no impact on reducing crime but makes the state itself criminal.