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…

Tennessee's Lethal Injection Experiment

Lethal injection lab
As an execution date looms, a lawsuit over drugs used in previous ‘botched’ executions heads to trial

Unless the governor or a court order says otherwise, the state of Tennessee will execute Billy Ray Irick next month. Shortly after 7 p.m. on Aug. 9, an execution team at Riverbend Maximum Security Institution outside Nashville plans to inject Irick with a three-drug cocktail — midazolam, a sedative; vecuronium bromide, which causes paralysis; and potassium chloride, which stops the heart. 

But what could happen next is at the core of a lawsuit filed by more than 30 death row inmates and set to go to trial on July 9. The inmates are suing the state, contending that the new three-drug lethal-injection protocol adopted in January amounts to cruel and unusual punishment. The new protocol, the suit argues, could effectively result in a person being tortured to death. 

That fear revolves around the use of midazolam, a drug the state’s own consultants have warned about. In a September 2017 email to state officials, a person working to acquire the lethal drugs on the state’s behalf writes in an email about possible concerns associated with midazolam. 

“Here is my concern with Midazolam,” writes the person working to acquire the drugs, whose identity has been redacted from court documents. “Being a benzodiazepine, it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride, especially.”

The drug has also been at the center of numerous so-called botched executions in recent years. Most notably, midazolam was used in Oklahoma’s disastrous execution of Clayton Lockett in 2014. After Lockett had been declared unconscious and all three drugs had been administered, he spoke and attempted to rise up off the gurney. An attorney for Lockett who was present told reporters “it looked like torture.” Lockett ultimately died of a heart attack 43 minutes after the execution began.

There are others. As part of the case on behalf of the death row prisoners, federal public defender Kelley Henry and a team of attorneys representing the men plan to present autopsies showing that 21 prisoners whose executions used midazolam experienced pulmonary edema — fluid in the lungs. Essentially, they argue, those prisoners drowned in their own fluids. 

But a new change in the state’s plans has raised even more concerns for the men Tennessee plans to execute. The new three-drug protocol was adopted in January because of problems acquiring its previous drug of choice, pentobarbital. In a deposition last month, Tennessee Department of Correction commissioner Tony Parker said the state had acquired midazolam, vecuronium bromide and potassium chloride in accordance with the new protocol, but that two of the drugs have since expired. As a result, according to sworn deposition testimony from TDOC officials, the state will now use compounded drugs — that is, drugs tailor-made by pharmacies. (Conflicting statements from state officials reflected in court documents make it unclear whether the state plans to compound all three of the drugs or just midazolam.) 

Compounded drugs come with their own list of potential risks, on top of the concerns about midazolam in general. In a recent filing, lawyers for the Tennessee death row prisoners cite Virginia’s execution of Ricky Gray last year, which involved the use of compounded midazolam, commercially manufactured rocuronium bromide and compounded potassium chloride. The attorneys say Gray’s “execution was similar to a drowning or a sarin gas attack” and that he suffered acute pulmonary edema. 

“Blood found on his lips indicated that blood entered Gray’s lungs while he was still breathing,” the attorneys write.

The attorneys also note that the federal government and the Food and Drug Administration do not license compounding pharmacies, and they raise doubts about the propriety of the state’s source for the drugs, which remains mostly shrouded in secrecy. 

Their concerns do not end there. Knowing the risks associated with midazolam, they write, their clients will be “subject to the psychological pain and suffering of anticipating a horrific, painful death.” 

In his deposition, TDOC’s Parker said he’d spoken to colleagues about executions using midazolam and was confident that the executions went as intended “for the most part.” 

For a number of the men on death row, the execution chamber is still likely a ways off. Although the state has shown a renewed determination to schedule executions, many of the condemned have yet to exhaust their appeals. But Irick, a 59-year-old with a history of serious mental illness who was convicted in 1986 of the rape and murder of a 7-year-old Knox County girl named Paula Dyer, has been on death row for more than three decades. He has seen his death scheduled and delayed several times in recent years. But this execution date will be harder to move. He has few options remaining. 

The attorneys representing Irick and dozens of other death row inmates fear the state’s own associates were right when they warned officials that midazolam might not spare these men the pain caused by the next two drugs, an experience Henry has likened to drowning or being burned alive. One way or another, Irick almost certainly won’t leave the execution chamber alive. But the question that goes before a judge this month is whether he will experience something identified as cruel and unusual by the Supreme Court of the United States in 1890: a “lingering death.”

Source: Nashville Scene, Steven Hale, July 5, 2018

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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