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No Second Chances: What to Do After a Botched Execution

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Ohio tried and failed to execute Alva Campbell. The state shouldn't get a second chance.
The pathos and problems of America's death penalty were vividly on display yesterday when Ohio tried and failed to execute Alva Campbell. Immediately after its failure Gov. John Kasich set June 5, 2019, as a new execution date.
This plan for a second execution reveals a glaring inadequacy in the legal standards governing botched executions in the United States.
Campbell was tried and sentenced to die for murdering 18-year-old Charles Dials during a carjacking in 1997. After Campbell exhausted his legal appeals, he was denied clemency by the state parole board and the governor.
By the time the state got around to executing Campbell, he was far from the dangerous criminal of 20 years ago. As is the case with many of America's death-row inmates, the passage of time had inflicted its own punishments.
The inmate Ohio strapped onto the gurney was a 69-year-old man afflicted with serious ailm…

Alabama: Judge critiques ban on physicians assisting executions

A federal judge Monday denied a group of death row inmates' challenge to the state's use of lethal injection in executions.

But then Chief U.S. District Judge Keith Watkins turned to medical professionals.

In a critique at the end of a 29-page opinion - titled "Alternative Method Evidence: Hippocrates and Hypocrites" - the judge accused the medical community of using the American Medical Association's prohibition on physicians assisting in executions to prevent testimony on execution methods that would "compassionately ensure no measurable possibility of feeling pain during execution."

"The medical profession may choose," Watkins wrote. "It could continue on the side of guerrilla tactics against a clearly constitutional right of the state to execute criminals convicted of vile human desecration and death; or, it could choose to become part of a compassionate solution to perceived human suffering by rendering assistance to inmates facing the final human judgment, with 'great humbleness and awareness of [one's] own frailty.'"

The American Medical Association's Code of Medical Ethics for physicians prohibits doctors from participating in or assisting with executions. "As a member of a profession dedicated to preserving life when there is hope of doing so, a physician must not participate in a legally authorized execution," the code states.

The code does allow testimony on a person's medical history; relieving pain or anxiety at the anticipation of an execution by a condemned person or intervening to mitigate extreme suffering by an incompetent prisoner suffering psychosis or any other illness.

Messages seeking comment were sent to the American Medical Association Tuesday afternoon. John Palombi, a federal defender representing the inmates, said Tuesday afternoon they were "very disappointed" in the decision and had filed an appeal with the U.S. 11th Circuit Court of Appeals.

Joy Patterson, a spokeswoman for the Alabama attorney general's office, which represented the Alabama Department of Corrections in the case, said they had no comment Tuesday.

The case involves 10 death row inmates who claim that midazolam, a sedative used in the state's 3-drug execution protocol, would be unlikely to render them unconscious before the administration of rocuronium bromide, a paralytic, and potassium chloride, which stops the heart. Following U.S. Supreme Court rulings that condemned inmates objecting to the method of execution must propose alternatives, the inmates proposed single-drug methods of execution, using injections of midazolam; pentobarbital or sodium thiopental.

The state in the past used pentobarbital and sodium thiopental as sedatives in the lethal injection process. Hospira, the manufacturer of sodium thiopental, stopped making it in the United States in 2011 over concerns with its use in executions. Alabama switched to pentobarbital afterward but ran out of the drug by early 2014. The state implemented its current protocol using midazolam in September of that year.

Noting the absence of the drugs, the Department of Corrections argued that using compounded pentobarbital or sodium thiopental was not workable. DOC also said the plaintiffs failed to show that a single large injection of midazolam would result in less pain than Alabama's current 3-drug procedure.

Watkins sided with the state, writing that witnesses failed to identify sources of sodium thiopental or pentobarbital the DOC could get. The judge also wrote that the plaintiffs failed to show "scientific evidence of record" to support their arguments that midazolam alone would be a safer, less painful, alternative to the state's current method.

Following that discussion, Watkins accused "modern medical ethicists" of selectively reading the Hippocratic Oath to find "pure magic in unleashing the genies of physician-assisted suicide, medical marijuana, drug and alcohol use - even abuse - during pregnancy and without personal responsibility, all in the name of liberty, self-determination, and choice."

The American Medical Association's current position on physician-assisted suicide is that it is "fundamentally incompatible with the physician's role as healer, would be difficult or impossible to control, and would pose serious societal risks." The AMA has called for more studies of the impact of medical marijuana but has not endorsed its use.

Watkins also said that the AMA's opposition to physician participation in executions was "playing at Hippocrates and God in the same breath," and unfavorably compared deaths resulting from medical errors - estimated by one Johns Hopkins study at 250,000 a year - to the 57 executions that have taken place in Alabama since 1983.

The judge also attacked the U.S. Supreme Court's 1958 decision in Trop v. Dulles, where the majority held that the Eighth Amendment's prohibitions against cruel and unusual punishment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Watkins favorably quoted the late Justice Antonin Scalia's opinion that it was "a task for which we are imminently ill suited."

"The hollow arguments from a debased medical community in death penalty cases are both the progeny of, and prompted by, just such standardless Trop jurisprudence as applied to the death penalty," Watkins wrote.

Robert Dunham, the director of the Washington, D.C.-based Death Penalty Information Center, which opposes capital punishment, said Tuesday Watkins' criticism reflects "the inherent problem with lethal injections."

"It is a process by its nature that requires medical professionals to violate their ethical codes," he said. "It's not a surprise they would be reluctant to do that."

The state plans to execute death row inmate Thomas Arthur on Thursday. Arthur has an appeal pending in the federal courts, arguing in part that the courts should allow him to argue for a single-dose injection of pentobarbital or a firing squad as an alternative method of execution.

Source: Montgomery Advertiser, November 2, 2016

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