America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

A cruel, unusual, deadly cocktail: Why lethal injection should be nearing the end of its life

There are about 2,900 of death row prisoners in America. Between 20 and 50 of them are killed in any given year, at least over the past decade.

In a little more than 2 weeks, the state of Arkansas intends to put 8 prisoners to death in the span of 10 days.

It is an unprecedented move, and a moment for people who would rather not think about how those executions happen to revisit their chilling, clinical and increasingly problematic means.

In America today, prisoners executed by the state typically have their lives ended via lethal injection, using what is often described as a "three-part cocktail."

The language conjures the mental image of an extremely strong drink.

There are 3 parts to the lethal injection process. First, inmates are injected with a barbiturate to sedate them, then pancuronium bromide, to paralyze their body, and finally potassium chloride, which stops the heart.

The method was proposed in 1977, alongside a simultaneous proposal for a barbiturate-only injection, similar to what vets use to put down animals. Though arguably less susceptible to error, this method was rejected for fear of that exact comparison.

Compared to the loud violence of a firing squad, the primitive look of a hanging, the potential for setting a man on fire via electrocution or watching someone resist cyanide asphyxiation in the gas chamber, strapping someone to a gurney and giving him an intravenous drip may seem remarkably "humane."

It has taken 40 years for the cracks in the facade to undermine the practice.

The most commonly used barbiturate in lethal injections is a drug called midazolam. The use of midazolam is contentious, and the reason why was obvious during the 2014 execution of a man named Joseph Wood in Arizona.

For 1 hour and 57 minutes, Wood gasped more than 600 times on the table, as his attorney frantically filed an emergency appeal to halt the execution. It was denied.

That same year, Clayton Lockett was executed in Oklahoma, writhing and screaming. Also in Oklahoma, a man named Michael Wilson's last words on the table were, "I feel my whole body burning."

In December 2016, an Alabama inmate named Ronald Bert Smith coughed and moved throughout the 30 minutes it took for him to die.

Smith had fought the use of lethal injection in court, calling it the type of "cruel and unusual punishment" prohibited under the Eighth Amendment to the Constitution and citing the failure of midazolam in these recent high-profile executions. He lost.

If midazolam is so unreliable, why is it still in use? Because pharmaceutical companies don't want to get their hands dirty either. Pfizer blocked its products from being used for lethal injection in mid-2016. The European Commission has put strict controls on the exportation of sedatives. Indian producer Kayem Pharmaceuticals is refusing to sell to U.S. prisons.

Arkansas' supply of midazolam reportedly expires in April. The Death Penalty Information Center suggests the state's rush to execute prisoners is connected to the drug's imminent unusability and the difficulty of obtaining more.

Some states have looked for workarounds. Following the disaster of Joseph Wood's death, Arizona renounced the use of midazolam. That same year, the state attempted to illegally obtain sodium thiopental, a substitute, from India.

In February, the Arizona Corrections Department added a new protocol, stating an inmate's attorney may bring "a sedative, pentobarbital or an anesthetic" if they can get it from "a certified . . . supplier." This is as illegal as it is absurd in its attempt to put the onus for sparing an inmate pain on his legal counsel.

Other states have dealt with the drug shortage by contemplating the reintroduction of less modish forms of execution. Oklahoma once welcomed the gas chamber, Utah the firing squad, Tennessee the electric chair; Mississippi legislator Andy Gipson recently introduced a bill to make those methods available to his state once more. Mississippi hasn't had an execution since 2012, and currently holds 47 people on death row.

Gipson blamed the extremes states are being forced to go through to kill people on "left-wing liberal radicals," but opposition to the death penalty is a more moderate view than ever. A Gallup Poll last year says that support for the death penalty is at its lowest level since 1972.

Some legislators recognize that we are in a moment where there's no way to disguise what states are doing to their citizens.

On March 7, Arkansas state Rep. Vivian Flowers submitted a bill to abolish the death penalty in her state entirely, calling lethal injection "unfair and arbitrary." The state's Correction Department is even struggling to find the 6 to 12 "respectable citizens" required by law to witness the executions.

It's time for society to admit there's no humane way for the government to kill, even when that death is quietly administered to a person who can't scream that they're in pain.

Source: New York Daily News, March 29, 2017

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