This might come off as macabre. But seriously, in the year 2008 how difficult can it be to willingly kill a man? It continues to prove difficult as executioners in Georgia took 35 minutes to find a suitable vein to execute Curtis Osborne; he was pronounced dead 14 minutes after the first drugs entered his body. You can read more about this HERE.
We know that the death penalty system is flawed. But I would expect that the fruition of this public policy mess could be without flaw. We have no trouble euthanizing animals. We were tragically reminded of this as Eight Belles, a horse in the Kentucky Derby, was euthanized on the track of Churchill Downs. But when it comes to healthy human beings we falter. I am reminded of Angel Diaz who had to suffer terribly through 37 agonizing minutes as inept executioners watched him slowly die.
I can already see the comments now. “Just take a gun and place it to the back of his head.” Unfortunately that method does not subscribe to our Constitution’s 8th amendment which bans cruel and unusual punishment. However, if I were on death row and awaiting lethal injection, a procedure known to be errant, I might plead for that method of execution. I can also see other forthcoming comments or thoughts. “The victim didn’t receive any mitigation of pain. Their life was taken, cruelly.” True. However, the victim is gone. We can’t travel back in time. We can change the way we react and punish those who have murdered. We can work to make the method less flawed.
As many of you may know, the US Supreme Court recently took a case (Baze v. Rees) to examine the current lethal injection protocols. Little has changed since this landmark case. Lethal injection continues to be a varied method across the states that utilize it. Some have doctors present, some don’t. States use different amounts of the three drug cocktail. While the death penalty remains highly arbitrary and capricious one would hope that the method of killing these inmates would not be so arbitrary. One can hope.
On initial viewing the ruling in Baze v. Rees is simple–7 Justices upholding Kentucky’s lethal injection protocols and 2 Justices dissenting that ruling. Underneath that count is a splintered court that produced a separate concurring opinion by Justice John Paul Stevens.
An article focused on the ruling can be read HERE.
An article focused on Justice Stevens’ opinion can be read HERE.
In the majority controlling opinion Chief Justice John Roberts made the following statements. “A slightly or marginally safer alternative” would not suffice, the chief justice said. He added: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the Eighth Amendment.”
It is important to clarify that Baze v. Rees was a case about the method of lethal injection and whether those methods violated the 8th amendment–not lethal injection itself. “The challenge was to the details of the injection’s administration: the chemicals used, the training of the personnel, the adequacy of medical supervision, and the consequences and risk of error.” The justices were asked to rule if the risk imposed by the current lethal injection protocol in the state of Kentucky was in violation of the 8th amendment’s ban on cruel and unusual punishment.
“In an opinion concurring with the majority’s judgment, Justice Stevens said he felt bound to “respect precedents that remain a part of our law.” But outside the confines of the Kentucky case, he said, the time had come to reconsider “the justification for the death penalty itself.””
“He wrote that court decisions and actions taken by states to justify the death penalty were “the product of habit and inattention rather than an acceptable deliberative process” to weigh the costs and risks of the penalty against its benefits.”
What troubles Justice Stevens is that states are justifying their death penalties as a result of its flaws rather than its successes. If states wanted to improve upon their death penalties they would be facing challenges based on what they can do better, not on what they are already doing, and continue to do wrong.
The New England Journal of Medicine had an editorial recently on the role of physicians in executions spurred by the US Supreme Court case, Baze v. Rees. READ IT HERE. Baze v. Rees has called into question the current lethal injection protocol. The editorial explains the risk of the current lethal injection protocols in a clear and concise manner. The editorial takes the position that “physicians and other health care providers should not be involved in capital punishment. A profession dedicated to healing the sick has no place in the process of execution.”
I commend the journal for taking a stance in an issue that oftentimes is easier to ignore. Folks often forget that the death penalty doesn’t only impact the executed, family of the murder victim, and family of the executed, it also impacts those involved with the process. Doctors felt a need to speak up and they have in one of the most popular and widely read journals out there. Below are two very important paragraphs from the editorial.
“We are concerned that, regardless of its decision in Baze v. Rees, the Court may include language in its opinion that will turn again to the medical profession to legitimize a form of lethal injection that, meeting an appropriate constitutional standard, will not be considered “cruel and unusual punishment.” On the surface, lethal injection is a deceptively simple procedure, but its practical application has been fraught with numerous technical difficulties. Without the involvement of physicians and other medical professionals with special training in the use of anesthetic drugs and related agents, it is unlikely that lethal injection will ever meet a constitutional standard of decency. But do we as a society want the nation’s physicians to do this? We believe not.”
“Physicians and other health care providers should not be involved in capital punishment, even in an advisory capacity. A profession dedicated to healing the sick has no place in the process of execution. On January 7 in oral arguments in Baze v. Rees, the justices asked many important and thoughtful questions about a potential role for physicians and other health care professionals in executions. In their fuller examination of Baze v. Rees, the justices should not presume that the medical profession will be available to assist in the taking of human lives. We believe that, like the anesthesiologists in the Morales case, all responsible members of the medical profession, when asked to assist in a state-ordered execution, will remember the Hippocratic Oath and refuse to participate. The future of capital punishment in the United States will be up to the justices, but the involvement of physicians in executions will be up to the medical profession.”
Kudos to James Staub for his piece in Sunday’s Tennessean. As a murder victim’s family member, James’ voice is of vital importance as the state of Tennessee examines the death penalty, particularly concerning the question of whether or not it serves victims’ families.
James points out that the current lethal injection debate is just one detail as we consider the larger questions involved with the death penalty. He raises issues of wrongful convictions, cost, and the increasing numbers of victims’ families, law enforcement, and district attorneys who believe that the death penalty is a diversion of tax dollars and an ineffective deterrent.
As I read the article and continue to reflect on the death penalty as a public policy, I wonder again and again why we hang on to it? If it is not a deterrent, costs too much, does not serve victims’ families, and is not necessary to protect us, then why? Why?
About 10 minutes ago my sister made me aware of this fantastic article from Time Magazine titled “Death Penalty Walking” written by David Von Drehle. I am embarrassed to say that she found it before me, but, she writes for Time Inc. so she has a slight advantage. You can read the article HERE. The article, spurred by the US Supreme Court case, gives a comprehensive review of the problems plaguing this public policy as well as discussion into lethal injection and the importance of Baze v. Rees.
On the method of executions:
“In a perfect world, perhaps, the government wouldn’t wait 30 years and several hundred executions to determine whether an execution method makes sense. But the world of capital punishment has never been that sort of place. This weighty moral issue, expressive of some of our society’s deeply held values, involves a lot of winging it. In 1990, for instance, a sponge used in the headpiece of Florida’s electric chair wore out. There’s no factory or parts catalog for execution devices, so the prison sent a guy to pick up a sponge at the store. Problem was, he bought a synthetic sponge instead of a genuine sea sponge, and when Jesse Tafero was strapped in, his head caught fire. Florida officials diagnosed the problem afterward by testing a similar sponge in a toaster.”
Does this really surprise anyone? Well, let me rephrase, does this surprise anyone already familiar with how bungled up the death penalty is?
On lethal injection’s inception:
“In comparison, lethal injection sounds more scientific–almost therapeutic–but its history is as improvised as that supermarket sponge. In 1977 an Oklahoma lawmaker sketched the protocol on a notepad with the help of a medical examiner. More research has gone into the proper way to brush your teeth.”
From what I understand, one of the more compelling reasons that a 3 drug cocktail has been administered for so long is that officials felt it would be odd to use the same procedures on animals as on humans. Animals (sick ones) are fortunate enough to receive a one drug dose which kills them in a humane manner while humans (healthy ones) are given a concoction that was chosen because it was simply divergent than the animal practices.
Fix it or end it:
“The debate almost always comes down to the question of whether to fix it or end it. But these alternatives largely miss the reality. Every attempt to fix the death penalty bogs down in the same ambivalence. We add safeguards one day, then shortcut them the next. One government budget contains millions of dollars for prosecutions, while another department spends more millions to defend against them. Indeed, the very essence of ambiguity is our vain search for a bloodless, odorless, motionless, painless, foolproof mode of killing healthy people. No amount of patching changes the nature of a Rube Goldberg machine.”
Reading that above made me think of sitting in on the committee meetings thus far here in Tennessee. Any attempt to fix it is of course a positive act and one that I would welcome, but, it would cost the state millions of dollars and (the article delves into this) open up new venues for death penalty attorneys to appeal their cases. I applaud Tennessee’s efforts to study and fix the administration of the death penalty but as always, I will continue to advocate for abolition.
Uniqueness of Baze v. Rees
“There’s nothing attractive about the specifics of the death chamber. In the arguments on Jan. 7, the Justices may hear descriptions of bloody surgeries, called cutdowns, performed by EMTs and less trained prison officials as they struggle to insert IV lines into the ruined veins of longtime drug abusers. Without a doctor present, it often falls to prison officials–sometimes watching from a separate room–to determine whether an inmate is unconscious or simply paralyzed as the searingly painful heart-stopping agent potassium chloride takes effect.”
I’d like to think we live in a civilized society in the year 2008 but that paragraph conjures up thoughts up methods of torture from the Middle Ages. If we didn’t have the death penalty we would not have to waste our time with this case, amending the methods, the appeals, etc. Also, family members of the victims would not receive false promises of retribution and closure that never comes. Instead, they could rest easy knowing from the very beginning that the murderer will be behind bars in terrible conditions for the rest of their natural life. If the death penalty were never an option in the first place, I believe victims would be better served.
Today, the US Supreme Court will begin hearing arguments on whether or not the current protocols of lethal injection are in violation of the 8th amendment of the Constitution which bans cruel and unusual punishment. The Justices are not being asked to rule on the constitutionality of the death penalty which was determined constitutional three decades ago. A wave of cases revolving around lethal injection across the United States in lower courts has piqued the attention of the highest court in the land. One of the key rulings was here in Tennessee in which Judge Aleta Trauger ruled that the current lethal injection protocols were unconstitutional. However, it was a case in Kentucky, Baez v. Rees, that made its way to Washington D.C. Supporters of the Kentucky petitioners stated that the current method poses an “unnecessary risk of pain and suffering.”
The Knoxville Sentinel has an AP article covering the case and also includes a poll asking readers if they believe in capital punishment. Read the article HERE. If you could take one second and visit the above link and vote NO, you can make your voice heard. The article highlights one of the most confusing aspects of this case and the challenges being posed to capital punishment.
“But when the justices return from their holiday break and hear arguments today in a lethal injection case from Kentucky, their questions are unlikely to focus on whether capital punishment or even the method of lethal injection is right or wrong.
The two death row inmates whose challenge is before the court are not asking to be spared execution or death by injection. Their argument, at its most basic, is that there are ways to get the job done relatively pain-free.”
The last blog post by Stacy highlighted the confusion that many have, including our own state’s legislators. Lethal injection is still a viable method for execution–once the protocols are again deemed constitutional. I believe the hope of the US Supreme Court is to ensure that lethal injection is in fact lethal. I don’t think that is much to ask for as a civilized Western nation in the year 2008.