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Ohio, Texas and the Ultimate Penalty

What Executions Say About the Executioners

by CHRISTOPHER BRAUCHLI

State sponsored executions are back in the news again.  By the time this column sees the black of print, two men will have been executed in the space of less than one week, one in Ohio and one in Texas.  Neither would be remarkable  (except in the eyes of the decedent and his family) but for what the executions say about their executioners.  In Ohio it is the enthusiasm of the state for getting the job done and in Texas the duplicity of its governor and attorney general who permitted the execution to go forward.

On January 16, 2014, the state of Ohio showed the world that the lack of a proven potion to accomplish the task would not halt the execution of Dennis McGuire.  A lesser state might have postponed the execution because of the unavailability of drugs that had most recently been used by Ohio when conducting its executions.  The   unavailability of death dealing drugs was not because they were no longer being manufactured. They were unavailable because their manufacturers refused to sell them to states that used them in executions.

When Missouri was confronted with the unavailability of propofol, its favored drug for executions, Missouri postponed a scheduled October 2013 execution until it could come up with an acceptable substitute.  When Texas encountered a problem in obtaining pentobarbital, the drug it used in execution, state correction officials forged prescriptions in order to obtain the drug from a pharmacy.  (When the forgery was discovered the pharmacy refused to fill the prescription.)  Unlike Texas and Missouri, Ohio dealt with the problem by being creative.

For many years before Dennis’s execution, Ohio had used a three-drug combination that performed its assigned task in less than 15 minutes.  When questions were raised as to whether or not it caused the person receiving the drugs an unconstitutional level of discomfort its use was discontinued and other drugs were substituted.  None of those drugs being currently available, on January 16, 2014, Ohio killed Dennis by administering a sedative and a painkiller, a procedure that had never before been used in the United States.  To outward appearances it was not a great success although Dennis did die.  However, during the execution he appeared to be desperately gasping for air and the procedure took more than twice as long as it had taken when those being executed received the established death dealing cocktails.

Commenting on the new Ohio procedure, Doug Berman, a law professor and death penalty expert said:

“[W]hat we now have discovered is Ohio is using a method that gets the job done, but looks ugly.  We don’t know if it actually was ugly.  We just know that it looked ugly.”

(If Ohio wants to find out if the procedure “actually was ugly” it might consider giving the person being executed a device with a button to press to let those watching the execution know if he finds the procedure unpleasant.  That could inform future executions, permitting the state to modify procedures if appropriate. The inmate might take pleasure in knowing that while dying he was helping to improve the execution process. )

On January 22, 2014, Texas executed Edgar Tamayo, a Mexican citizen.  After Edgar was arrested and charged, Texas ignored its obligations under the Vienna Convention on Consular Relations.  Under the Convention,  foreign nationals who are arrested and charged with criminal conduct are entitled to have their Consulates notified of their detention.  In 2004 the World Court ruled that Edgar’s rights and the rights of four dozen other Mexican nationals awaiting the death penalty were violated since they had not been properly advised of their consular rights.  In response, President Bush ordered Texas to conduct those hearings.  In 2008 the U.S. Supreme Court ruled that the president lacked the authority to order Texas to conduct those hearings.

Following the Supreme Court decision, however, Governor Rick Perry and Attorney General Greg Abbott, both honorable men, wrote the Supreme Court, the Secretary of State, and the Attorney General of the United States and said Texas would ask the Texas courts to review the issues raised by the World Court, even though they were not are required to do so.  Sadly, from Edgar’s point of view, Governor Perry forgot to ask Texas courts to consider that question.  So did Greg Abbott who hopes to be Texas’s next governor.  Commenting on the execution, Governor Perry’s spokesperson said:  “If you commit a despicable crime like this in Texas you are subject to our state laws, including a fair trial by jury and the ultimate penalty.”   Nothing was said about broken promises.

January 22, 2014, Edgar was executed without a review of his Vienna Convention claim.  As the governor’s spokesperson said, Edgar had a jury trial and got the ultimate penalty.  Who cares that Edgar’s rights under the Vienna Convention on Consular Relations were not honored or that the governor and the attorney general of Texas showed themselves to be men without honor in permitting Edgar’s execution to go forward?

Not Texas.

Christopher Brauchli is a lawyer living in Boulder, Colorado.