Wednesday, February 5, 2014

Close Enough for Government Work

The idea behind hanging is that it's quick and simple.  In practice, it's something of a mess.  If it's not done right, the victim may slowly and grotesquely strangle, suffocating, struggling.  Or the rope actually ripping off the head.  It's not that hanging can't be done right.  It's just that it's tougher than you might think.  Regardless, there's actually something else that can go wrong, that has gone wrong in the movies and at least a few lynchings.

The rope can break.  In which case, the person doesn't die.

Willie Francis didn't die the first time they electrocuted him.

Rommell Broom still isn't dead.

But those are incidental failures.  Matters of chance, of incompetence.  One offs.  Just the basic fuck ups that happen from time to time in this world.

Death after all, can be an iffy sort of thing.  

Consider Donald Miller, Jr., of Hancock County, Ohio.  He disappeared in 1986.  His wife had him declared legally dead in 1994 so she could get at his social security for herself and the kids.  8 or 9 years ago, he came back, tried to get his death overturned, you know.  But the law's a harsh taskmaster. Turns out you can only get undead in Ohio within three years.  
Hancock County Probate Court Judge Allan Davis called it a "strange, strange situation."
"We've got the obvious here. A man sitting in the courtroom, he appears to be in good health," said Davis, who told Miller the three-year limit was clear.
"I don't know where that leaves you, but you're still deceased as far as the law is concerned," the judge said.
Or consider Paul Mutora from Naivasha, about 55 miles northwest of Nairobi in Kenya.  He tried to kill himself by swallowing insecticide.  Taken to the Naivasha District Hospital.  Efforts failed.  He was declared dead, taken to the hospital morgue.  His father and other relatives came to see the body, then left to make funeral arrangements.  Sometime later that day
A witness told the Star newspaper that when noises were heard inside the cold room: "The mortuary attendant and a worker took to their heels screaming."
Mutora probably put it best.
This was a mistake from the start and I apologize to my father.
I could go on.  There are, it turns out, more than a few of these Lazarus stories, each with it's own peculiarities.  What they have in common is that like the broken rope or the failed electrocution or the inability to kill off Rommell Broom, they're oddities, newsworthy (and fictionworthy, of course, but that's a different matter altogether) in the man-bites-dog sort of way.

But now.  Alan Johnson has the story in the Dispatch.
Gregory Lott, the next Ohio killer scheduled for execution, could suffer a “lingering death” for 45 minutes after being officially declared dead — and might even be resuscitated, his attorneys argued in a court motion filed yesterday.
Maybe, maybe not.  They don't say that he surely will.  (Hell, Ohio hasn't even decided yet just how they plan to kill him, so there's little certainty about anything except that the plan is for the murder to occur at 10 in the morning on March 19.) But it's more than just a marginally possible thing.

If you're going to kill someone with a lethal injection - at least with any of the drugs we've used for it (or intended to, I'm making the perhaps rash assumption that the pharmacies always delivered and the compounders actually produced what they're supposed to) - you want to do it quickly. That was the underlying idea behind the original three-drug sequence.  The third drug, potassium chloride, stopped the heart.  Death was quick and, because of the pancuronium bromide, looked peaceful and painless whether it was or not. 

But once we abandoned that mix, well, it turns out that just sedating someone to death (at least with the drugs we were using) can take a while.  Up to maybe 45 minutes says Ohio's favored expert anesthesiologist, Mark Dershwitz.  Nobody wants to have the witnesses sitting around that long getting bored watching a body just lie there.  Even the newfangled combo we used on Dennis McGuire - and you'll recall how smoothly that went - took 26 minutes to kill him (though there was certainly stuff to keep the witnesses' attention from wandering).

As I said, nobody wants to be sitting around watching a body do nothing for 45 minutes.  And really, who's to say when it's dead, anyhow?  The proper way to tell is with an EKG.  Wait for the heart to flatline.  But that's a pain to set up and then there's that whole thing about 45 minutes or so.

Dersh offered an alternative.
So I pointed out to them that they would have to come up with a different way of pronouncing death, assuming that they didn’t want to sit there for many, many minutes waiting for the electrocardiogram to go flat. Because I thought that would be very difficult especially on the witnesses to have to sit there for half hour, 45 minutes or longer.
Ah, a different way.  You know, a way that lets them say he's dead before he's actually dead.  
I also said that if they used a physical examination to assess the absence of breathing and circulation, they could do so many, many minutes before that, because electrical activity in the heart persists for about a half hour after the heart stops beating.
Got it.  A doc with a stethoscope.

So in just a few minutes, maybe, he can say, I don't hear anything.  Call him dead.  That's a wrap. Close curtain.  Everyone go home. Show's over.  Wrap him in the body bag.  Wheel him into the hearse and off to the morgue.

There's just this tiny complication.  He's maybe not yet altogether dead. The thing about being not altogether dead, of course, is that it's just another way of saying "still alive."  Gregory Lott's lawyers explained in their motion,
Because a person whose heart and lung sounds have been chemically suppressed to the point that they are no longer detectable can be resuscitated by “very aggressive methods,” the next question becomes whether Lott can still be resuscitated after Defendant Warden has declared him dead. The history of Ohio executions using 5 grams of pentobarbital, and the expert advice of Dr. Dershwitz, demonstrate that there is a substantial likelihood that Lott can be resuscitated after Defendant Warden has declared him dead. 
Which means, we have this plan where we declare the guy dead and wheel him out and just . . . .

Once, quickly, for those of you who want to tell me that letting the guy slowly die in the hearse or at the morgue after the witnesses have gone home and he's been declared dead even though he's alive and god only knows if he's trying to gasp or scream or sit up or
Yeah, I know, the person he killed.  The crime he committed.  None of this undoes that.  The person's still dead.  That horror hasn't changed.  Anyway, it isn't a cruelty contest.  We're supposed to be better than that.  We also have a Constitution and laws we're supposed to obey.


Judge Frost will be holding a hearing, I expect.

Stay tuned.


  1. Which is why I advocate the firing squad as being both lethal and humane. No one has ever survived the firing squad since its inception back in the bad old days when they used a canon filled with rocks.

    And, while we're on the subject, you forgot to mention that in a botched hanging the head often comes off. Mind you, the culprit is dead as hell, but the commercial news media can't seem to stomach the photos of decapitation.

    I cannot for the life of me imagine just why the Great Unwashed believes, or seems to believe, that the elite cadre of bloviating swindlers calling itself Our Beloved Government is qualified to select and administer a lethal cocktail of drugs to a condemned prisoner so as to cause a quick and painless death. Just look at the mess this drawer-full of animated dildos has made of State government. Read a few of the nonsense regulations the rest of us are forced to live with, and then explain it to me. Don't be afraid to use polysyllabics, parables and apologues.

    1. Did too. Take another look at the first paragraph where I wrote, "Or the rope actually ripping off the head."

  2. This answers one question I've always wondered about. Anesthesiologists, as a profession, spent something like half a century learning how to reliably knock patients out without killing them. So it always seemed to me that it can't be all that difficult to execute someone with those chemicals, given how hard it is to keep them alive. But now I see there's another factor I hadn't thought of: Speed. They want it over quickly.

    On the other hand, I'm not sure I share your concerns over a doc with a stethoscope. It sounds comparable to the standard used for people who die in hospice care. When I made the decision to stop life support for my mother, she spent about a day lying unconscious with a morphine drip. She wasn't hooked up to a monitor, and no alarm sounded when her heart stopped -- after all, what would anyone do about it? When we noticed she stopped breathing and told the nursing staff, a young doctor came in and checked for a pulse and listened for a heartbeat with a stethoscope. Detecting nothing, she declared her dead, and that was the end. If it was good enough for my mother, and for thousands of others who die in hospice care, it doesn't sound cruel or unusual or unethical in itself.

    1. There's dead and there's dead. When the state's expert says that there's some chance the dead guy can be resuscitated, that strikes me as insufficiently dead. But Dershwitz doesn't say the stethoscope guy is going to get a different result from what the EKG will every time. The difference is a function of how these drug protocols cause death - by depriving the organs of oxygen. In the traditional three-drug sequence, by contrast, death is cause by the heart stopping potassium chloride which doesn't carry this problem.

      Beyond that, the Supremes say that an execution method that causes a "lingering death" violates the 8th Amendment. And