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The Executioner’s Problem

If it were an art to overcome heresy with fire, the executioners would be the most learned doctors on earth.

— Martin Luther, To the Christian Nobility of the German   States  (1520)

At last a touch of concern for the beneficiary has entered the death penalty arena and a timely thing too.  Heretofore the discussion and court cases have always centered on the plight of the poor executioner who is unable to find the proper drugs with which to dispatch the condemned.  No one seemed to be concerned about the comfort of the person being executed.

The executioner’s problem comes about because of the unavailability of the preferred potions that have been used ever since hanging, firing squads, gassing and electrocution left the scene because they did not seem like civilized ways to rid society of its unwanted. How, where and what drugs the executioner can obtain, however, remain a significant concern as shown by a case in Oklahoma where two executions slated for March have just had to be rescheduled for April.

Because of an unfortunate quirk in Oklahoma law, if the executioner is unable to acquire the drugs needed to conduct an execution, the execution may not take place.  Whereas the Oklahoma legislature considered the possibility that lethal injection might be found to be unconstitutional and provided that were that to happen the executioner could use electrocution or hire a firing squad instead, that alternative did not apply if the required drugs were unavailable.

Oklahoma is, needless to say, desperate. Anxious to make sure the death deadlines can be met, in a brief filed with the court, Assistant Attorney General Seth Branham describes “a herculean effort” to get the necessary death dealing drugs, an effort that everyone in Oklahoma  (except for the inmates) surely applauds.  Up to now its efforts have been unsuccessful.  That is because both foreign and domestic drug manufacturers are cutting off supplies of drugs that have been used in executions for many years.  To deal with this problem, states are resorting to finding drugs and providers that are not tested and in two recent cases the individuals being executed have shown through their death throe actions that they are experiencing great pain during the execution.  When that is revealed to the public it immediately reacts negatively since such conduct by the person being executed suggests that the executioner is not performing the task in a kind and humane way.  To make matters worse from a public relations standpoint, one of the favored drugs in conducting human executions is a drug that the American Veterinary Medical Association has decreed cannot be used when euthanizing animals since it is often ineffective in performing its assigned task and is considered inhumane.

Deborah Denno, a law professor at Fordham Law School was quoted in the New York Times as saying: “We’ve never seen so many changes and so many troubles in getting these drugs.  The states are more secret than they’ve ever been.  And it’s a much riskier process than it’s ever been.”

An article in USA Today entitled “Death penalty spurs Wild West scramble for drugs” describes some of the questionable practices being used by states in their quest for drugs so that executions can proceed in an orderly fashion.

The result of this wild West approach is that those who will receive the drugs no longer have the certainty they had before procurement became a problem, that the drugs would help them die in a comfortable way.  It seemed to those on death row that recent executions where the victims clearly suffered great pain violated the provisions of the 8th Amendment to the U.S. Constitution that Judge Kermit Bye of the US Court of Appeals for the 8th Circuit said in a recent case:  “prohibits the unnecessary and wanton infliction of pain through torture, barbarous methods or methods resulting in a lingering death.” All that is what gives rise to the renewed interest by condemned inmates in the types of execution planned by the state in which they happen to be in residence.

Courts are beginning to showing a willingness to acknowledge the condemned person’s right to know the particulars of the execution in which he or she plays such an important part and a single sentence in a recent U.S. Supreme Court order suggests the time may be approaching when that Court will consider the question.  In the Missouri case of Michael A. Taylor a “miscellaneous order” was entered in which the Court declined to consider Mr. Taylor’s appeal from a lower court order permitting his execution to go forward.  Accordingly he was executed without knowing the composition of the drugs used to kill him.  Three of the Supreme Court’s justices, however, said they would have been open to considering Mr. Taylor’s argument that he was entitled to know what drugs would be administered to him during his execution.

Once the courts decide that the condemned are entitled to know what combination of drugs will be administered to ease their passage into the hereafter we will once again demonstrate to the 140 countries that have abolished the death penalty, that although we remain in the company of the likes of Nigeria and North Korea in permitting capital punishment, we do all we can to make the experience one to which the condemned can look forward being fully informed.

Christopher Brauchli is an attorney in Boulder. He can be emailed at brauchli.56@post.harvard.edu

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