Executioners

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy

That's Section 2903.01(A) of the Ohio Revised Code setting forth the elements of one form of the crime of aggravated murder.   Anyone who is found guilty of doing that faces a minimum of 20 years in prison.  

If the person is also found guilty of what we call a "death specification" (the death specs are set forth in R.C. 2929.04(A)) the person can receive the death penalty. If that happens, and if the sentence is carried out, the prison guards who perform the execution will, of course, have 

purposely, and with prior calculation and design, cause[d] the death of another.

Which, of course, would seem to allow them to be sentenced to prison for a minimum of 20 years and maybe to be sentenced to be killed.

I've made that point before, just as I've pointed out that there's no exception in the law - at least none in either the Ohio Revised Code or in Ohio's case law - for doing the killing at the direction of a judge or a panel of judges.  

As I've also said, ain't nobody gonna get charged with aggravated murder (with or without death specs) for carrying out a court authorized execution.

I've lso pointed out, from time to time, that a substantial number of executions - both in Ohio and elsewhere - are botched, screwed up.  They take too long.  Things go wrong.  Flames shoot out of the head of the guy in the electric chair.  Prison guards have trouble sticking a needle in a vein to inject the lethal drugs.  The drugs don't actually provide the theoretically authorized painless killing. The hanging goes wrong and instead of a quick neck snap the victim dangles choking or gets decapitated.  Sometimes the execution fails completely and the person doesn't die.

And either the powers that be swear, despite the evidence, that nothing went wrong or they promise to double check their protocols and practice better and make sure it won't happen again.

Ho hum

And then I was reading The Faithful Executioner: Life, Death, Honor and Shame in the Turbulent Sixteenth Century, by Joel F. Harrington, history prof at Vanderbilt University.  It's the story of Meister Frantz Schmidt who for some 45 years, from 1573 to 1618, most as the official executioner (and also torturer, by the way) of Nurenberg.  Meister Schmidt was an interesting guy, a second generation executioner who wanted nothing more than to be relieved of the social and legal ostracism that came with the job.  

Of course, executions were public spectacles in those days.  And while Schmidt was apparently really good at what he did, other executioners were not so competent.  You know, they sometimes botched the job, didn't kill smoothly and easily, screwed up somehow.  Harrington quote a report on the 1641 effort by Valentin Deuser to cut off the head of Margaretha Voglin, "an extremely beautiful person of nineteen years" and, oh, a child murderer.  

She was in sorry shape, "ill and weak."  She had to be carried to the chair for her beheading.  Before getting the job done, Deuser apparently stalked around her, waving his sword.  He accidentally hit a bit of wood, sliced a chunk of skin off her head, and knocked her out of the chair. And

since he hadn't hurt her body and she fell so bravely, [the crowd] asked that she be released.

Nope.  Deuser grabbed her, put her back on the chair, took another swipe at her neck, nicked her that time, again knocking her off the chair.  And while she pleaded, "shouting, "Aiee, God, have mercy!" he

hacked and cut at her head on the ground, for which cruel butchery and shameful execution [he] was surrounded by people who would have stoned him to death had nto archers present come to his aid and protected him from the people.

Deuser was arrested and then fired from his job.  But apparently he was not the only screw up.  As Harrington explains,

Mishaps leading to mob violence and lynch justice jeopardized the core message of religious redemption and state authority.  In some German towns and executioner was permitted three strikes (really) before being being grabbed by the crowd and forced to die in place of the poor sinner.

In his concurring opinion in Furman v. Georgia, Supreme Court Justice Thurgood Marshall floated an idea that's become known as the "Marshall Hypothesis."  He thought that 

people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.

It's been suggested that one way to effect the hypothesis - and then end executions - would be to make them public again.  Looking at the responses to botched executions in renaissance Germany, suggests Marshall may have been on to something.

It Seems Competence Isn't Enough

Turns out that it wasn't incompetence.  Which is maybe the bad news.  AP reports.

Intravenous lines were placed correctly during the execution of an Arizona inmate whose death with lethal drugs took more than 90 minutes, a medical examiner said Monday.
Incorrect placement of lines can inject drugs into soft tissue instead of the blood stream, but the drugs used to kill Joseph Wood went into the veins of his arms, said Gregory Hess of the Pima County Medical Examiner's Office.

That's happened before.  Most recently, apparently, in Oklahoma where the folks trying to kill Clayton Lockett missed the veins and pumped the drugs into his body tissue.  It didn't work, and, if the reports are accurate, he died of a heart attack after they gave up for the day the effort to kill him.  It's not all that surprising that they screw up that way.  The killers, after all, aren't medical professionals.  They aren't anesthesiologists.  They're prison guards.

And all too often they demonstrate, as they did in Oklahoma in April, and as they have several times in Ohio, that they're incompetent.

But not in Arizona.  Not this time, anyway.  Not for Joseph Wood last week  Nor for Dennis McGuire in Ohio back in January.

They did what they were supposed to do.  Followed orders to stick needles in the veins and pump them full of drugs that will kill.  And yet.

Hess also told The Associated Press that he found no unexplained injuries or anything else out of the ordinary when he examined the body of Wood, who gasped and snorted Wednesday more than 600 times before he was pronounced dead.
An Ohio inmate gasped in similar fashion for nearly 30 minutes in January.

So what happened?  What is it that led to the cock ups in Ohio and Arizona? 

I mean, this shit is supposed to work.  That's the promise, after all.  No, we're not experimenting with new murder techniques.  We're using top medical advice for clinical executions.  Sure we can't use the drugs we want because nobody'll sell them to us.  (And what's wrong with those drug manufacturers that want their drugs to be used for healing not killing?)  But these are supposed to be just as good. Midazolam followed by hydromorphone.  The combo in Ohio and Arizona.  

And see, there's the answer.  Because if it isn't incompetence, then it's the drugs.   Which are, after all, third string.  Plan C, as it were.

Tennessee's bringing back the chair which states stopped using because it was sure as hell looking like the courts were all going to start finding the chair to violate the 8th Amendment's prohibition against cruel and unusual punishment.  

Other states are talking about the firing squad or maybe hanging.  Maybe it's time to return to drawing and quartering?  Or crucifixion.

Because if the horrors of what happened to Joseph Wood and Dennis McGuire weren't due to incompetence, then there's a bigger problem.  

Even when we know what we're doing, it doesn't work. 

Is It Really Botched If He Ends Up Dead?

An hour and 57 minutes.

He gasped some 650 times for all but the last 17 minutes or so.

They gave him the fucking drugs a second time because, well, who knew if he'd ever die.

It was torture said John McCain who knows a thing or two about torture.

Smooth sailing said Jan Brewer and the AG and Kent Scheidegger and a spokesman for Arizona's DOC who all declared, with the certainty of the ignorant, that he was sound asleep through the whole thing and felt absolutely no pain or discomfort even if it took longer than they'd expected.

The family of his victims complained that it wasn't nearly ugly enough, and how dare people wish it were easier on him.

What if the federal judge had ordered it stopped and him revived?  Could they have done it? Apparently, they could have.  And could they then have tried to kill him again?  Nina Totenberg pointed to Ohio where the Supreme Court has agreed to answer that question in Romell Broom's case.

Like Ohio, and like Oklahoma, and like every other state where lethal injections go horribly wrong despite repeated declarations that it was all cool, they'll investigate and review.  And like all those states, they'll guarantee that the investigation will be independent because it will be conducted by the same people who ordered and carried out the killing.  Inspector, investigate yourself.

And like those states, and Missouri and Georgia and Texas and Louisiana and everywhere else, they'll explain that it's vital that they kill and insist that the who and how and where they get the drugs must be secret.  Because the people demand killin' but would stop it if they knew who was involved.

We once executed at high noon.  In the town square.  So the people could see the consequences and learn.  The killing was to be as John Bunyan says in a different context in Pilgrim's Progress, both "caution and example."  But of course the people partied.  And the pickpockets thrived.  

So they moved it inside.  Hidden away.  Did it at midnight.  Away from the throng, which just wouldn't learn.  And then earlier in the day, because why pay overtime or force the killers to miss time with the wife and kids afterwards?

I've said before that if we're going to do this, we should own up to it, give up the pretense of gentle killing and necessary murder.  Forget the ban on cruel and unusual punishment.  Admit that it's by God murder.  Have them tied down and gnawed to death by rats in Yankee Stadium. Put it on pay per view. Then we'd have to allow that it's no more than revenge.  Really just blood sport.  

Alex Kozinski, Chief Judge of the Ninth Circuit, dissenting from that court's refusing en banc review of a decision of a panel of that court staying the execution so that Wood could get information about the drugs Arizona was going to use and where they came from and like that so he could determine whether his killing would likely prove to be torture (citation deleted, emphasis added). 

Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. 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. See  But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all.

He's OK with that splatter.  I'm not.  But then, I'm opposed to the whole enterprise.  We're better than that.  Or we're supposed to be.  That's why we hide it.  Why we pretend to medicalize.  Why it's supposed to be kinder and gentler.  Really, this is for your own good.

Which is, of course, bullshit.

His name was Joseph Wood.  He was murdered by the State of Arizona.  It took an hour and 57 minutes.  He gasped some 150 times during all but the last 17 or so of those minutes.  They had to drug him a second time.  They said it all went really well.  They lied.

Gruesome Indeed

In case you haven’t been paying attention, here's a sampling.

• Stephen Morin: 45 minutes of poking and prodding
• Raymond Landry: Drugs squirting around the room and spraying at the witnesses
• Stephen McCoy: heaving chest, gasping, choking, witness fainting
• Tommie J. Smith: They called in a doctor when the "execution team" couldn't get him dead
• Joseph Cannon: Vein collapsed; needle popped out; he lay down, closed his eyes, announced "It's come undone."
• Bennie Demps: "They butchered me back there."
• Jose High: They called in a doctor for him, too.
• Joe Clark: It don’t work.  It don’t work.
• Angel Diaz: Needle went right through the vein and sent drugs into soft tissue.  Took two does to kill him.
• Chris Newton: Bathroom break
• Romell Broom: The guy they couldn’t kill
• Michael Lee Wilson:  "I feel my whole body burning"
• Dennis McGuire:  Gasping, snorting, choking, heaving, fist clenching
• Clayton Lockett: The other guy they couldn’t kill (unless maybe they caused the heart attack)

Of course, it's all good.  Lethal injection is, after all, the nice way to kill folks.  Medicalized. Clean. Like putting a dog to sleep.  

We got there, started doing this with the drugs because, well everything else was just too damn messy.

• Hanging.  Too often then neck didn't snap.  Instead, dangling, slowly strangling, kicking, gasping. Or, maybe even more problematic (and certainly more bloody, decapitation.
• Electrocution.  Instant death.  Except for those times when they have to keep shocking the guy.  And then there's the stench of burning flesh, the flames shooting from the head.  And of course Willie Francis who didn't die.  (And F.G. Bullen, who also didn't, but nobody knows about him.)
• The Gas Chamber maybe? Choking, gasping, heaving, vomiting - and that's the witnesses too.

The problem is the goal.  And it's in two parts.

Part one is the killing.  That's the sentence.  We call it the death penalty but that's really a misnomer.  If the penalty were death . . . . Well, we all have that penalty coming. And it's not death in prison.  That, after all, is LWOP.  And it isn't untimely death.  If that were all, they wouldn't struggle to save the life of an attempted suicide so they can kill the guy or gal the next day or the next year or whenever.

No, the penalty is to be killed.  So part one is ensuring it happens.

Part two is the how.  As a species, we've tried pretty much everything you can think of.  Boiling in oil? Drowning?  Death of a thousand cuts?  Crucifixion?  Stoning?  Burnt at the stake?  Stoned to death? Drawn and quartered? Thrown to the lions?  Been there.  Done that.  Got the souvenir t-shirt.

But we're better than that (or so we proclaim ourselves), better than the people we will kill.  Our punishment of killing is retribution (we say), not equivalence.  So we won't torture.  We won't inflict more pain than we must.  We won't have spectacles.  

The days of hanging in the town square with hundreds, maybe thousands, attending, having picnics, tailgating, crowds filled with pickpockets.  They're over.  Too unseemly for the solemn business of killing.  

Austin Sarat explains in his important new book Gruesome Spectacles: Botched Executions and America's Death Penalty.

Even as capital punishment seeks to do justice and/or satisfy the public desire for vengeance, the state has countervailing concerns.  It must distinguish execution from the acts to which it is a supposedly just response.  The state must also find ways of killing in a manner that does not allow the condemned to become an object of pity, or to appropriate the status of the victim.  But despite the determined claims to the contrary, capital death never simply means death.  Rather, since its inception, it has been inextricably tied to the instruments used to carry it out.  The legitimacy of state killing depends largely on execution method.  Technology mediates between the state and death by masking physical pain and allowing citizens to imagine that execution is clean, efficient and painless.

And, as we've seen, it's a difficult task.  

What Sarat (theWilliam Nelson Cromwell Professor of Jurisprudence and Political Science and Associate Dean of the Faculty at Amherst College, as his bio on the back flap says, in collaboration with four students: Katherine Blumstein, Aubrey Jones, Heather Richard, and Madeline Sprung-Keyser) has done is to examine every legal execution in the U.S. between 1890 and 2010 and catalogue all the ones that have gone wrong. 

The catalogue is the appendix, a chronological list, with names, dates, states, killing technology, and a brief description of 276 cock-ups, times things didn't go quite as planned.   The list is sobering.  But  the heart of the book is the chapters devoted to the technologies and their failures.  One chapter each for hanging, electrocution, the gas chamber, and lethal injection.

Each of those chapters gives an overview of how the technology developed, how it was adopted as something better, cleaner, purer if you will, than what came before.  And then each describes a few specific instances, in varying detail, of just how badly things have gone wrong.

Sarat isn't whitewashing here.  Along with the details of the execution we learn of the crimes, the trials, the appeals.  But it's the executions, the killings, that are (as the title of the book makes clear) the focus.

So, to pick one pretty much at random, there's Allen Foster.  North Carolina had been using the electric chair, but it was fucking up too often.  So they built the first gas chamber east of the Mississippi. Cyanide gas, they'd concluded, was so deadly it would kill instantly.  There would be no suffering.  So they said.  Foster, a young black, was first up.

He had a history of juvenile crime.  By the age of 13 he was locked up, but not so well that he couldn't escape.  Eventually the kid made his way to the Hoke County Civilian Conservation Corps on the Fort Bragg Reservation where on September 28, 1935, "he strayed from his work assignment."  He made his way to a farmhouse where he watched Mrs. Ernest Capps working in her potato garden.  He followed her inside.  He planned to rob her.  There was a struggle.  He hit her int he head with a bottle. He demanded money.  Bleeding, she gave him what she had.  Then he raped her at knife point.  

Young white woman.  Black rapist and robber.  North Carolina.  1935.  No shock that he was found guilty.  No shock that he was sentenced to be killed.  No shock that the sentence was carried out.

January 24, 1936.  Foster ir strapped into a "high-backed oak chair at the center of the room."  The witnesses watched as

Grayish fumes rose from beneath the chair.  As the fumes surrounded him, Foser watched themm intently, wide-eyed, until they reached about nostril-high.  Then he took a deep breath -- meant to be his last -- and "exhaled the greyish vapor as if it had been cigarette smoke." One newspaper acount read: "'Good-bye.' The Negro's lips framed the words so clearly that no man in the witness room could doubt what he had said. As he said it, he winked and then forced a smile at the witnesses peering in at him. Then he began to suffer. No man could look squarely into his eyes and fail to perceive that hey were registering pain."
As the gas continued to rise, Foster seemed to "fight against breathing. He threw his head back inhaling desperately and deeply.  He coughed and twisted. His chest heaved." Foster's "small but powerfully built torso" began to "retch and jerk, throwing his head forward where witnesses could see his eyes slowly glaze." The "torturous, convulsive retching continued spasmodically for several minutes." Several more minutes passed until Foster finally lost consciousness and the prison physician signaled that his heart had stopped.  It was another twenty-four minutes before the chamber and observation room could be cleared. Witnesses sat in silence as undertakers removed Foster's body from the high-backed chair.

Sarat goes on to describe the responses.  W.T. Bost, a well-known reporter who'd covered "electrocutions, hangings, and lynchings," wrote 

I think it was an awful butchery. . . I am opposed to capital punishment, but if we've got to have it, there are ways and ways of killing a man, and almost any way is better than this

But Gruesome Spectacles is more than a collection of horror stories.  Sarat's larger point - one I've made repeatedly in this blog and dramatically demonstrated this year with the bungling, botched, horrific deaths of Dennis McGuire in Ohio and Clayton Lockett in Oklahoma - is that it's about impossible to kill people in ways that are both reliably smooth and painless and that will not unduly upset the witnesses or those who are paid to kill.  Debby Denno, a law prof who's studied these things carefully and for years says that the firing squad is probably the fastest, surest, least painful way of killing.  But there's a broad-based feeling that it's somehow unfit, too barbaric, too militarized, too involved with bullets and with blood for us to go there.

And so, if we want to kill but kill nicely, we've got a real problem.

But that brings us to Sarat's larger point.  Nobody much cares.

Why, Sarat asks, doesn't this history of screw ups and disgust, of gruesome spectacles, make us rethink capital punishment?  He blames it in large part on the media which even when it doesn't downplay the ugliness, still temporizes.

Oh, it was terrible.  But look what he did.

Or

Oh, it looked terrible.  But the governor says, trust us, it didn't hurt a bit. 

Of course, if you read the on-line comments to those temporized media stories, you meet the folks who make Bill Otis look like the voice of restraint

So he suffered horribly for a few minutes or an hour or so.  He should have been buried alive, then dug up, chopped up, forced to watch as his body parts are fed one at a time to lions, then slowly burned to death on a rotating spit.

Sarat's is an important book, a serious contribution to a grotesque business.  And as the state's struggle, bringing back the chair, the chamber, the noose, it's a timely reminder that none of it's any good.  If we're better than the guys we're killing, if we want to avoid the gruesome spectacles, well, science won't save us.  Only stopping the killing will do that. 

"I have found the missing link between the higher ape and civilized man: It is we." - Konrad Lorenz

But Mousie, thou art no thy-lane,
In proving foresight may be vain:
The best laid schemes o’ Mice an’ Men
         Gang aft agley,
An’ lea’e us nought but grief an’ pain,
         For promis’d joy!

From Robert Burns, "To a Mouse" On Turning up in Her Nest with the Plow - November, 1785 

* * * * *

It's Oklahoma (wind sweeping down the plains, waving wheat that sure smells sweet, them belonging to the land) where they're really not doing so fine.

They've been having this problem.  They've been trying to kill Clayton Lockett and Charles Warner, but it's been a mess.  The two of them sued to learn what the drugs would be.  That led to a squabble between the Court of Criminal Appeals and the Supreme Court over who had a right to issue a stay while the litigation was going on.  Each court pointed to the other. 

Finally the Supreme Court issued a stay.  The governor said the court didn't have the authority and declared that he'd have them killed anyway.  (Can you spell Constitutional Crisis?)  She ordered a one week reprieve for Lockett to give the court a chance to see things her way.  Which they did, deciding that secret drugs were just fine and dissolving the stay. 

Which brought us to this evening.  Lockett's reprieve was till today and Warner's killing was scheduled for today.  So the Sooner State planned its first double execution since 1937 years.

Except.  You know, I didn't put that Robert Burns thing at the top of this for no reason.

Erik Eckholm in the Times.  

What was supposed to be the first of two executions here Tuesday night was halted when the prisoner, Clayton D. Lockett, began to twitch and gasp after he had already been declared unconscious and called out “man” and “something’s wrong,” according to witnesses.

Something was wrong indeed.

A doctor started to administer the first drug, a sedative intended to knock the man out, at 6:23. Ten minutes later, the doctor said that Mr. Lockett was unconscious, and started to administer the next two drugs, a paralytic and one intended to make the heart stop.
At that point, witnesses said, things began to go awry. Mr. Lockett’s body moved, his foot shook, and he mumbled, witnesses said.

At 6 :37, he tried to rise and exhaled loudly.

Yeah. 

 

Of course now, with things absolutely having gone south, a clear mess.  Grotesque.  They closed the curtain.  Witnesses only get to witness what the state wants them to see, after all.  But it was too late. They'd seen.  They'd heard.  They knew the bullshit.

From CNN.

Yet the office of Oklahoma Gov. Mary Fallin issued a statement indicating "execution officials said Lockett remained unconscious after the lethal injection drugs were administered."

Anyway, they threw in the towel.  Called off the effort to kill Lockett tonight.  Gave Warner a two week reprieve while they try to figure out how to make it prettier (and more successful) next time.

Rommell Broom in Ohio back in 2009.  Now Clayton Lockett. Two failed lethal injections. Lockett became the second man they couldn't kill by lethal injection. 

Broom's still in litigation over what should happen to him.  Lockett . . . . Well, he's cheated the hangman for good.  43 minutes after they started poisoning him, he had a heart attack and died.

I get tired, frankly, of writing the same thing.  It turns out that it just isn't that easy to kill people in socially acceptable ways.

Missouri's talking about bringing back the chair.  (Or maybe that's Arkansas.  Really, what difference does it make?)  Because there hasn't been a failed electrocution since the 40's, though there have been plenty that didn't go right.  And there is that thing about how people actually burn to death, their blood literally boiling inside their bodies.

Or maybe the gas chamber where people choke and gasp for minutes after minutes, sickening the witnesses.  Debbie Denno says that the firing squad is actually the surest and probably most humane, but we want death to be bloodless, neat, scientific.  Medicalized.

And so we do IV lines and drugs from compounding pharmacies and prison guards who aren't competent to do any of this, but then doctors aren't allowed to participate in executions - although Oklahoma actually had a doctor doing the whole thing press reports say, and you know how well that went.

We don't know what we're doing.  We can't do it right.  And it seems we don't give a rat's ass.

-------------------
And see Gideon

If You Close Your Eyes Really Tight and Wish Really Hard

He did not experience pain, distress or air hunger after the drugs were administered or when the bodily movements and sounds occurred.

Good to know.  We can all sleep better now.  And of course, his family can drop the lawsuit.  Concerns satisfied.

McGuire, of course, is Dennis McGuire, he of the gruesome execution back in January.  You remember.  Alan Johnson described it in the Dispatch.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

But the good folks at the Department of Rehabilitation and Correction (Possible Mottos: Rehabilitating by Execution since 1999; Correcting unto Death) looked into it.  And they've concluded it was all hunky dory.  Everything went as planned.

[There was] no evidence that McGuire experienced any pain, distress or anxiety.

How do they know?  Did they ask him?  

Hey, Den.  You know when we killed you?  Did it hurt?

No answer?  Guess not.

Or maybe they brought in some superstar pathologist and did the latest scientific tests and discovered that . . . .

Nope.

OK, here's what I think they did (and please guys from DRC, if I've got this wrong provide me with some evidence and explain): They checked the IV lines. They talked to the guards who were there. They spoke with Dr. Dershwitz and a couple of others who devised and vetted this scheme and certified it as at least a silver standard if not a gold one. They concluded that (1) it was done exactly the way it was planned, everyone following the script; (2) if it was done perfectly, he wouldn't have experienced any pain or agony because that's what the docs told us; (3) we wouldn't torture him; (4) It's all cool.

Which is how it goes.
In 1997, Florida killed Pedro Medina in the electric chair.   From CNN.

Witnesses and prison officials said a 6-inch flame arose from the right side of Medina's black leather face mask during the execution, flickering for several seconds and filling the room with smoke and the smell of burning flesh.

Other reports say the flames shot a foot in the air.  Either way, Florida investigated, concluded the problem was a bit of corroded copper but the good news was that, they said, Medina died instantly. Felt nothing.

Jesse Tafero had died instantly in that same chair back in 1990 while flames were shooting out of his head and even though they had to give him three jolts because he continued breathing after each of the first two.  But prison officials were sure.  They said he was dead after the first few seconds.

It's all of a piece.  And it's all nonsense.  But if they say it often enough, maybe they can convince themselves.  And then the rest of us.

Of course, there are those (read the comments to the news stories if you want to see) who think that torture is just fine.  Fuck the 8th Amendment.  

Except that we're supposed to be better than that.

Ohio by the way, while assuring us all that Dennis McGuire's execution went perfectly and was a model of wholesomeness even if it looked a little messy, has determined that next time it's upping the doses of both drugs.  AP reports.

The department said it "finds no harm in increasing the dosage levels of its drugs," after consulting with its medical expert and examining other states' practices, spokeswoman JoEllen Smith said.

No harm?  Well, yeah.  I suppose.  On the other hand, why? If it ain't broke . . . . And they swear it ain't.  

Oh, yeah.  Even they don't believe their bullshit.

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.

Sigh.

Judge Frost will be holding a hearing, I expect.

Stay tuned.

  Lott Motion

They Can't Say They Weren't Warned

It's called "air hunger," an extreme form of dsypnea, and it's pretty much what it sounds like.  The person can't breathe, is terrified by the inability, gasps, struggles, suffers acute agony.  

It's what an expert anesthesiologist told Judge Gregory Frost that Dennis McGuire might experience when the good people of the State of Ohio put McGuire to death with intravenous doses of midazolam and hydromorphone, a combination never before used anywhere in an execution.

Frost said, sure, maybe.  It's an experiment.  But he wasn't convinced the risk was severe enough to stop it.

Of course, the 8th Amendment prohibits cruel and unusual punishment. On the other hand, as AP reporter Andrew Welsh-Huggins reported the other day,

that doesn't mean execution procedures must be entirely comfortable, Thomas Madden, an assistant Ohio attorney general, told Frost on Friday.
"You're not entitled to a pain-free execution," Madden said.

Not, at least according to the 8th Amendment as interpreted by the Supreme Court.  The thing is, Ohio (and only Ohio, by the way) says you are entitled to just that.  Here, omitting a bit at the beginning that changes nothing and adding italics for emphasis, is Section 2949.22(A) of the Ohio Revised Code:

[A] death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. The warden of the correctional institution in which the sentence is to be executed or another person selected by the director of rehabilitation and correction shall ensure that the death sentence is executed.

As an assistant attorney general grudgingly conceded in court when we were litigating that section in another lethal injection case some years ago, "painlessly" means without pain.  Thing is, nobody takes that provision seriously.  And in any event the issues before Judge Frost were what the U.S. Constitution allows.

And so they killed Dennis McGuire this morning.  And it was pretty much what they'd been told.  Alan Johnson, a reporter for the Columbus Dispatch, watched the execution and described what the witnesses saw.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still. 

It was 10:53 when they pronounced McGuire dead.  

Allen Bohnert, one of McGuire's lawyers, said it was a

failed, agonizing experiment by the state of Ohio. . . . The people of the state of Ohio should be appalled by what was done in their name.

What Allen didn't say, but what he well might have, is

Told you so.

Ohio has, of course, an unmatched track record of incompetence at executions.  It took nearly 90 minutes to kill Joe Clark, close to 2 hours to kill Chris Newton, and of course they failed to kill Rommell Broom.

But kill we will.

No state outside the south has executed so many as we have here.  It's not even close.  And we're going strong. As I wrote yesterday, we've got folks lined up for the needle through January 2016.

Enthusiasm and incompetence.  A troubling combination of traits.  But that's us.

While he was being killed this morning, Dennis McGuire's wife and children held hands and sobbed.  Joy Stewart's family said justice was served.

If that's justice, I don't want any part of it.

His Eyes Never Closed

It's like putting a dog to sleep, they say.

It's humane, they say.

Which is, as I've said several times now (here, for instance, and here), itself something of a problem.  Here's Justice Stevens from his concurring opinion in Baze v. Rees.

At the same time, however, as the thoughtful opinions by THE CHIEF JUSTICE and Justice GINSBURG make pellucidly clear, our society has moved away from public and painful retribution towards ever more humane forms of punishment. State-sanctioned killing is therefore becoming more and more anachronistic. In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim. This trend, while appropriate and required by the Eighth Amendment's prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based. See, e.g., Kaufman-Osborn, Regulating Death: Capital Punishment and the Late Liberal State, 111 Yale L.J. 681, 704 (2001) (explaining that there is "a tension between our desire to realize the claims of retribution by killing those who kill, and . . . a method [of execution] that, because it seems to do no harm other than killing, cannot satisfy the intuitive sense of equivalence that informs this conception of justice"); A. Sarat, When the State Kills: Capital Punishment and the American Condition 60-84 (2001).

It's that complaint we sometimes hear from those crying out for blood.  

Where's the equivalence? He should suffer like she did.

But we won't do that.

Is lethal injection all that humane?  Surely there are worse, more horrific ways to kill.  And governments have used them over the centuries.  And there's no real question that murder by needle as practiced in our prison systems is generally intended to be, in Stevens's words, "relatively painless."  (By statute in Ohio it must actually be painless.)

Yet we know the problems.

When they do the three-drug mixture (anesthetic, paralytic, heart-stopper), if the anesthetic does not actually induce and maintain a sufficient coma (and there's significant evidence that sometimes it doesn't), then the rest of the killing will be agonizingly, horrifically torturous.  That, of course, assumes they can get the needles in at all (see Broom, Rommell).

So states, some of them, are switching to a single drug.  And there are, of course, the constant problems getting the drug, problems I've talked about before what with the DEA's seizures of smuggled thiopental and with Lundebeck's newfound willingness to try to halt use of pentobarbital.  And who really knows how pentobarbital works, anyway?  And of course, there's still the problem of getting the needle in the arm.

But try they will.  Because it's so damn important to kill.

For over 30 years Georgia's been trying to murder Roy Blankenship.  (That's him on the left.)

They screwed up his first two trials badly enough that he got a third.  That was death three times.  He maintained, always maintained, that he did not rape Sarah Bowen and that her death was not his fault.

This year he got stays for DNA testing.  Which was inconclusive.

Interesting word that.  It means we can't tell.  Was it him or not?  We don't know.  And since we can't be sure, better to kill him. 

Which they did. I mean, why take the chance we'd let a guilty man live when we can instead be sure that if he happens to be guilty he'll be dead.

Last night, they killed him.  The AP report in the Atlanta Journal Constitution describes it.

Blankenship's execution was under close scrutiny by state attorneys, death penalty defense lawyers and other observers. He was laughing and chatting with a prison chaplain in the moments before his execution, at one point trying to converse with the observers sitting behind a glass window.
As the injection began, he jerked his head toward his left arm and made a startled face while blinking rapidly. He soon lurched to his right arm, lunging with his mouth agape twice. He then held his head up, and his chin smacked as he mouthed words that were inaudible to observers.
Within three minutes, his movements slowed. About six minutes after the injection began, a nurse checked his vital signs to ensure he was unconscious before the execution could continue. He was pronounced dead nine minutes later. His eyes never closed.

Dylan Thomas wrote

Do not go gentle into that good night.

Roy Willard Blankeship.  Age 55.  His eyes never closed.

h/t Capital Defense Weekly

In Case You Were Wondering

A week ago, I asked what they were going to do now that Hospira will no longer make thiopental.  It was, of course, a rhetorical question.

We already knew some of the answer. Arizona and Georgia managed to lay in supplies from Dream Pharma, a dealer located in the Elgone Driving Academy in London.  (Nope, not making it up; and there it is.)  Georgia may actually have got its through the generosity of Arizona.  Nebraska has 500 grams from India.  Other states have their own stockpiles, but they're running low and have expiration dates.  

Meanwhile, Oklahoma substituted pentobarbital for thiopental in its three-drug sequence, and Ohio is planning a March killing with pentobarbital alone.  As Alan Johnson reported in the Columbus Dispatch, the only U.S. manufacturer, Lundbeck Inc., isn't happy about it.  According to Lundbeck's VP for communication, Sally Benjamin Young, the company sent a protest letter to Ohio's DRC.  She wouldn't release the letter itself.

However, Young said the company told state prison officials that it is "adamantly opposed" to the use of its product, sold under the trade name Nembutal, for capital punishment. "We urged them to discontinue using it for this purpose.
"Lundbeck is dedicated to saving people's lives," Young said. "Use of our products to end lives contradicts everything we're in business to do."
Prisons spokesman Carlo LoParo said the state will not heed the company's warning and will use the new drug as planned.

And while Ohio can change its drugs and protocol by fiat of the Director of the Department of Rehabilitation and Correction, it's not so easy everywhere.  AP, which laid out the problem in an article yesterday, makes the point.

In Kentucky, where the entire stockpile of sodium thiopental has expired, a switch requires an administrative process that typically lasts six months. Similar hurdles exist in California, Maryland and Nebraska.
Even states that require only a prison official sign off on a switch — including Texas, Ohio and Tennessee — could face a flurry of challenges.
"You can't just switch pentobarbital for sodium thiopental and proceed as if nothing has changed," said Ty Alper, the associate director of the death penalty clinic at the University of California-Berkeley. "There's likely to be litigation and courts will have to satisfy themselves that it will result in a humane execution."

So it's a mess.  Which is kind of what we knew.

I've said it before.  It's hard to kill people nicely.

Want another example?

Put the drugs aside.  How do you deal with the unexpected problems that arise along the way?  That was part of the question faced by Judge Gregory Frost in Columbus, Ohio.

Judge Frost has been overseeing the federal litigation surrounding Ohio's lethal injection since 2004.  That includes the drugs and the execution methodology and the teams of executioners and the like.  It also includes the mess arising from the failed effort to kill Rommell Broom.  That means he's got a whole boatload of issues in front of him.  Yesterday he ruled on a few.

Execution Access Order

The interesting part here is the discussion of the right to counsel of the person being executed beginning around page 8.

Say you're on the gurney and something goes horribly, unpredictably, wrong.  Tough, is essentially the state's position.  Well, not exactly said the judge.

In supporting their motions for summary judgment, Defendants state in their briefing that
they

rely not only on plaintiffs’ lack of a right to counsel’s presence under the Sixth and Fourteenth Amendments, but also on undisputed facts that defendants have not prevented counsel from witnessing executions and have not denied counsel the ability to contact the courts and persons outside the institution after the execution commences.

(ECF No. 861, at 6.) As already discussed, the Court disagrees with a portion of Defendants’ rationale but not with the dispositive outcome of the witness argument, and as set forth below, the Court concludes that Defendants are correct in regard to the contacting the courts argument. What proves problematic for Defendants is that portion of Plaintiffs’ claims that Defendants’ quoted summary omits, the ability of an inmate to confer with his or her counsel. It is this essential linking component that makes the presence of counsel of any potential value to an inmate and that renders meaningful the ability of counsel to access a court on an inmate’s behalf. The problem is that the circumstances created by the protocol and the custom and practices create an environment that can likely suppress the timely assertion of non-frivolous constitutional claims.

OK, so there's some right of access.  Inmate can consult with counsel.  Just how, of course, remains an open question.  Frost isn't about to micromanage the protocol.  But the fact that it may be inconvenient doesn't mean the state doesn't have to find a way.

Such access is no doubt without an administrative cost. Defendants present in their
briefing a laundry list of questions that they posit would arise from a conclusion that there is an applicable right in the execution context to access counsel in order to access the courts. It is perhaps unclear to this Court what analytic function Defendants intend these slippery slope problem scenarios to serve. A possible inference is that, by highlighting the potentially often inconvenient consequences of affording inmates their constitutional rights, Defendants seek to persuade this Court not by constitutional analysis but by pragmatic cautions that exist distinct from the words of the Constitution. The Court may be missing Defendants’ point, however, because certainly it cannot be Ohio’s position that mere bureaucratic convenience is the measure of the reach of the Constitution. Defendants’ reliance on what they deem “considerable practical reasons” for deciding that the Constitution applies in this context thus proves unpersuasive.

I want to repeat a part of the penultimate sentence.

[C]ertainly it cannot be Ohio’s position that mere bureaucratic convenience is the measure of the reach of the Constitution.

Heavens forfend.  No.  Ohio would never make such an argument.  Not Ohio.  Well, yeah, Ohio.  And every other state.  And the feds.  And too often the courts.

So I need to say this last part.

Frost not only said it was nonsense.  He seems to have meant it.  Good for him.

Of course, it's not a final ruling.  He denied the state summary judgment.  Actual access remains, technically, an open question.

So if you were wondering, the death penalty system is a mess.  Nobody knows just how the killing will go.  Nobody knows for sure what will happen next.

What we know is that it keeps getting harder and messier.

Gov. Quinn still hasn't decided what to do about signing the abolition bill in Illinois.

Ohio still plans to murder Frank Spisak on Feb. 17.