Contract Killings - with Correction

Ohio 2014 - One

Ohio 2015 - Nobody

Ohio 2016 - Eleven

That's executions, actual for 2014 and now 2015, scheduled for 2016.

You know the backstory. Ohio has an unmatched record of demonstrated incompetence in performing lethal injections.* Our last killing, Dennis McGuire in January last year, was particularly ugly. And precisely what they'd been warned would happen with their new experimental murder method. Alan Johnson covered it for the Columbus Dispatch and described what he 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.

So, and given the years of ongoing litigation here, the state backed off, called a brief halt, and saod ot would rewrite its protocol for the umpteenth time.  Which they did.  And given the litigation, well, the judge called halts and then everyone kind of agreed to court-ordered halts for a while.  And they decided not to use midazolam and hydromorphone any more.  But that meant finding some other drug and then the secrecy litigation because if you know where we get the drugs we'll have to kill you.

And finally, on Friday, the Governor who probably wants to be President decided to stop it all for a bit.  This year's planned killings, which included some from years past, all got punted into next year. When there are now 11 scheduled.  One a month from January through November.  

Will they all happen?  Probably not.  Some court will likely stop at least one or two.  The Governor may commute one of the sentences.  And of course the whole thing could implode again if we can't get the drugs or fuck another killing up - as we have so many.

And then there's the Supreme Court which is apparently going to decide by June whether killing with midazolam is unconstitutional and, more important really, whether the states can keep all the details of who's doing what a secret. whether a person complaining that the state intends to kill him unconstitutionally must suggest a constitutional method by which he can be killed.** Whatever they decide, expect more litigation.

In the meantime, though, and in 2016:

January 21 - Ronald Phillips
February 19 - Ray Tibbetts
March 23 - Alva Campbell, Jr.
April 20 - Gregory Lott
May 18 - Angelo Fears
June 22 - Warren Henness
July 20 - Cleveland Jackson
August 15 - William Montgomery
September 21 - Kareem Jackson
October 19 - Robert Van Hook
November 16 - Jeffrey Wogenstahl

To what end, exactly?

Each of them was found guilty of aggravated murder.  In each case, it was determined that the aggravating circumstance of the crime outweighed whatever mitigating factors were presented at trial.

Pretend that they got it right.  Every time.  Pretend these men all did terrible things and they had almost nothing to weigh against the crime but themselves.  Hell, maybe it's even true.  Maybe they are, or some of them are, the worst of the worst who did the worst things.  It could be.  (And the beauty of it is that there's no way actually to know, so we can pretend all we like.)

What then?

Van Hook will have been on death row for just over 31 years at his scheduled murder.  Montgomery nearly 30.  For Cleveland Jackson, the fastest of these 11, it will still be nearly 14 years.  And he'll be 38 when they kill him next year.  If they do.  At the other end, Alva Campbell will be 67. 

Whoever these people are that we're planning to kill, they're not who they were back then.  But by god, we're committed to doing it.  They must die.

Just not until next year.

When we kill Ron Phillips next January, if we do, it will have been just over two years since we botched Dennis McGuire's execution.  For just over two years, Ohio will have managed to kill not a single person on death row.  Somehow, the state will have survived unscathed.  Because, really, there's no need.

But if no need?  Then we're killing because we want to.  It's a conscious choice we make.

You, Ron Phillips.  You, Ray Tibbets.  You Alva Campbell, Gregory Lott, Angelo Fears. You, all of you.  We don't need to kill you. But we want to.
It's not that you need to die.  That's not something we can control.  No, we want to kill you.  More precisely, we want some prison guards we don't know to kill you.
We'll arrange it.  Pay for it.  Read about it in the newspaper afterwards.  Our arranged contract killings.  Because we want you murdered.  By those guys over there.

Next year.

 

---------------

*We are, after all, the state that tried for two hours but ultimately failed to kill Romell Broom.  He remains the only survivor of an execution attempt by lethal injection.  (Oral argument in the Ohio Supreme Court on the question of whether the state gets to try again to kill him will be the morning of June 9.)

**Sorry. I knew the right question when I wrote this last night.  I just didn't type the right question.

Calling Time Out on an "Imperfect System"

[W]hen the ultimate decision is death there is too much at stake to accept an imperfect system.

That's Jay Inslee, Governor of the State of Washington, earlier today explaining why he called a moratorium on executions.

Bill Otis apparently hasn't weighed in yet, but his less hyperventilating, more restrained venom-spewing, not quite so vitriolic co-blogger at Crime & Consequences, Kent Scheidegger, has.  

This action is one more in a series of Profiles in Cowardice that we have seen in multiple states.  Get elected first, then drop the bomb.

Scheidegger begins with the tale of Jonathan Lee Gentry who's spent 22 years on death row and was probably running out of time.  None of Islee's stated reasons for a moratorium, Kent says, apply to Gentry who should clearly be killed ASAP.  Islee should lead, Kent says, making the death penalty swift and certain and ensuring that it's applied more frequently.  That'll solve all the problems.

Assuming, of course, that you begin with the premise that the more we kill the better we are.

In any case, Islee wants to be clear that he's not being soft on crime, not wimping out on the 9 men on death row in The Evergreen State.

Let me say clearly that this policy decision is not about the nine men currently on death row in Walla Walla.
I don’t question their guilt or the gravity of their crimes. They get no mercy from me.
This action today does not commute their sentences or issue any pardons to any offender.
But I do not believe their horrific offenses override the problems that exist in our capital punishment system.
And that’s why I am imposing a moratorium on executions. If a death penalty case comes to my desk for action, I will issue a reprieve.
What this means is that those on death row will remain in prison for the rest of their lives. Nobody is getting out of prison -- period. 

Of course, those on death row were, absent some very substantial relief, going to "remain in prison for the rest of their lives," anyway.  The only question was whether that lifetime of incarceration would end with a state-sanctioned murder. Indeed, since Islee isn't actually commuting any sentences, unless something changes, those men may be executed as soon as the next governor takes office.  Like Governor Kitzhaber in the state just to his south, Islee's only assuring that the system he identifies as too broken to allow executions won't allow them while he's in office.  

I don't want to seem grudging.  I am in fact delighted, as I was last week when our own John Kasich granted an 8-month reprieve to Gregory Lott.  He won't be executed next month.  Nobody will here in Ohio (the state that, as a friend once said, is "round at the ends and tall in the middle") until maybe May when Arthur Tyler's up.  But Lott's still got a date, just one closer to the end of the year.  

Kasich didn't give much of an explanation, but it's clear that he wants to give the prison folk more time to figure out how to avoid yet another mess like they had with the gasping-snorting-choking murder of Dennis McGuire which pretty much cemented Ohio's reputation for ineptitude in lethal injection.

Still, and regardless of duration or motive, I am as I said delighted when there's a reprieve or a moratorium.  Every day we don't kill is a good day.  Every time someone isn't killed today, well, maybe it won't happen tomorrow, either.  And it's pretty clear that both Kitzhaber and Islee would like to see the legislature do what they're not willing to do themselves:  Call it off.  Turn moratorium into abolition.

Of course, Oregon and Washington are left coast states with small death rows and history of not killing bunches of people.  Here, in what come of our license plates refer to as "The Heart of It All," we have a large but shrinking death row.  And more than twice as many executions as any other state in the north. And while Governor K is pretty clearly not an enthusiastic, kill-em-all-last-week supporter of the death penalty, both he and Ed Fitzgerald, his Democratic opponent in the November election this year, have specifically affirmed their commitment to state killing.

Our midwestern live-and-let-live keeps losing out to our authoritarian kill-'em-before-we-change-our-minds. Yet even here.

Reprieves and moratoria may not be abolition.  But they're a step along the way.  And every life saved today really is an absolute good. 

  Governor Inslee's Announcement of a Moratorium

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

The Countdown Begins

I've quoted Camus before.

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

As I said in 2009,

He's probably wrong about who you might meet in private life. I've had clients and know of others who did things that would curl your toenails. But it's not supposed to be a sadism contest. We say we're better than that.

And yet, consider Ohio.

This morning, the Ohio Supreme Court issued this order.

Lott Execution Date Entry

March 19, 2014.

That's over a year and a half away.

Nineteen months.

Eighty-two weeks.

579 days.

12,896 hours

50,025,600 seconds

Mark them off.  Is there enough space on the wall of his cell for that many scratches.

And, of course, much can happen in 50 million seconds. In nearly 13,000 hours.  In 579 days. In eighty-two weeks.  In nineteen months.

So it's the certainty, the daily and deadly countdown coupled with the uncertainty of outcome.

I've never met Gregory Lott.  Never represented him. (Though I did once write and file an amicus brief on his behalf.)  Still, I can imagine. As perhaps the seven in their robes in Columbus should.

They will come for me on that date. And they will take me down the hall.  And they will kill me.
Or maybe they won't.
In the meantime, I sit.
And wait.
And count the seconds.
And hope.
When I do not despair.