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Death Penalty’s Latest Mutation:
Experimenting on Human Beings

| January 28, 2014

The condemned's arm is slung through it and strapped for the lethal injection cocktail. (Florida Prisons)

The condemned’s arm is slung through it and strapped for the lethal injection cocktail. (Florida Prisons)

As we welcomed 2014, I was heartened to see a report by the Death Penalty Information Center that offered some hope that maybe, just maybe, we are becoming a more civilized people. According to the report, “With 39 executions in 2013, this year marks only the second time in nearly two decades that the United States executed less than 40 people.” The report went on to note that “the number of states with capital punishment laws dropped to 32 this year, as Maryland became the 18th abolition state.” Two states, Texas and, yes, Florida were responsible for 59 percent of all executions nationwide (Florida put seven inmates to death in 2013 and has already notched its first execution of 2014).

In the press release that accompanied the report, the Center noted that the decline in executions was largely due to the increasing difficulty states are having in obtaining lethal injection drugs. For one thing, drug manufacturers in the European Union, where capital punishment is banned, are refusing to export their products for use in executions, and that has forced death-penalty states to pursue a grim search through lightly regulated compounding pharmacies for the right cocktail of drugs to end the lives of the condemned.

In Ohio, a mere two weeks into the year, the search for a suitable lethal concoction had a hideous outcome. According to witnesses, while chemicals coursed through his veins, convicted killer Dennis McGuire “gasped and snorted for roughly 26 minutes” before he was pronounced dead. There is no way to know whether or how much McGuire suffered, but the episode refocused attention on whether there is any such thing as a humane execution.

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Legal filings challenging Ohio’s use of untested drugs had warned that McGuire, who raped and stabbed to death a pregnant young woman in 1989, might struggle for oxygen for many minutes before dying. To which an Ohio prosecutor responded: “You’re not entitled to a pain-free execution.” Judge Gregory Frost apparently agreed, and permitted the execution to proceed, saying, “Ohio is free to innovate and to evolve its procedures for administering capital punishment.”

Then, earlier this week, a federal district judge in Missouri, Beth Phillips, denied a stay of execution for an inmate named Herbert Smulls, who was also challenging the use of a drug cocktail from a compounding pharmacy in neighboring Oklahoma. Phillips ruled that Smulls had failed to prove that the pentobarbital from the unnamed pharmacy would cause him to suffer, though she expressed concern that Smulls’s lawyers had not been given enough time to investigate the pharmacy’s credentials.

So, while the trend in 2013 was away from state-sponsored executions, judges in Ohio and Missouri rang in the New Year by ruling that it was okay for the state to experiment on live human beings, and if there is some pain and suffering, well, maybe that’s what the bastards deserve. Except that the infliction of pain, intentional or not, while it may not be unusual, is certainly cruel, and therefore unconstitutional.

So, while the trend in 2013 was away from state-sponsored executions, a judge in Ohio rang in the New Year by ruling that it was okay for the state to experiment on live human beings, and if there is some pain and suffering, well, maybe that’s what the bastards deserve. Except that the infliction of pain, intentional or not, while it may not be unusual, is certainly cruel, and therefore unconstitutional.

Like abortion and gun rights, the debate over capital punishment is always emotional, and how could it be otherwise? For every convicted murderer there is a victim or victims, killed sometimes savagely and grotesquely. And there are grieving family members, struggling with wrenching loss while also contending, usually for the first time in their lives, with a rage that knows no bounds–that the killer of their son, daughter, wife or husband could live on for years or decades seems itself grotesque. The urge for revenge is understandable, and eminently human.

According to the Boston Globe, the mother of a young woman killed in the Boston Marathon bombing is “a longtime opponent of the death penalty, [but] she has been rethinking her position in recent weeks. ‘Under the circumstances, an eye for an eye feels appropriate,’ she said.”
While prosecutors of murder cases (including U.S. Attorney General Eric Holder, in the Boston case) often solicit the views of victims’ families in murder cases, the decision to seek the death penalty simply can’t be justified either by society’s or individuals’ desire for revenge. Were that the case, we could issue baseball bats to family members and let them beat the convict to death in the town square.


But, getting back to the study by the Death Penalty Information Center, I think there is something else at work here as we come to terms with unequal applications of the law and, most of all, the stark fact of 143 death row exonerations since 1973. With the possible exception of Texas’s Rick Perry, for whom Texas’s executions are an applause line, governors are human beings, and for most people killing other human beings does not come easily. Governors, who are nearly always the final executioners, must be getting queasy as they survey a landscape of fallible juries, incompetent lawyers, the often willful misconduct of police officers and the imperfect nature of evidence. Immersed as we are in an ongoing debate about the limits of government power, the power of government to kill its own citizens—no matter how despicable some of those citizens may be—is a power too many. Winning an election by appearing to be more cold-blooded than your opponent is, at the very least, unseemly and, at worst, obscene.

In May, Colorado Governor John Hickenlooper issued an indefinite reprieve, not clemency, to Nathan Dunlap, who was convicted of killing four people in a restaurant in 1993. Hickenlooper’s act was not a defense of Dunlap, it was a condemnation of the death penalty. “It is a legitimate question,” he said, “whether we as a state should be taking lives.”

The mother of one of Dunlap’s victims accused Hickenlooper of taking “the cowardly way out,” but, in her grief, she couldn’t be more mistaken. Having suggested earlier in the year that he’d veto a bill that would have ended executions in his state, when confronted with the reality of ordering the death of another human being, Hickenlooper responded bravely. Here’s hoping that bravery visits more state houses across the country in 2014.

Steve Robinson moved to Flagler County after a 30-year career in New York and Atlanta in print, TV and the Web. Reach him by email here.

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14 Responses for “Death Penalty’s Latest Mutation:
Experimenting on Human Beings”

  1. Diana L says:

    Killing is wrong no matter who does it. The death penalty says more about us than it does about the death row inmate. Florida has had 24 death row exonerations

  2. A.S.F. says:

    It’s funny, but not in the least bit amusing, how some people are for “strict interpretation of the constitution” exactly as it reads (to them, at least) except when they are not–Like in this instance–When it clearly prohibits cruel and unusual punishment. I’d like to invite all those pro-death penalty gung-ho Christian far right wingers to witness the deaths of anybody they would put to death like this–and visual, while they do, that Jesus is sitting right next to them.

  3. m&m says:

    Death penalties should be carried out 6 to 12 months after the ruling.. Lawyers drag them out for 30 years only to line their pockets with tax payers money.

  4. Barb says:

    If it is experimentation then that is bad, but what about the people who suffered and were murdered under these human beings hands?

  5. just saying says:

    I’d argue that it is not the Government “doing the killing”, as a jury typically recommends death sentences and then the trial judge agrees it’s appropriate. Then a multitude of judges and lawyers twist everything they can and eventually the person is executed, sits in prison for life or in extreme circumstances released. In any case it’s always going back the jury and government is fulfilling the request of it’s citizens, in this case.

    • Steve says:

      Just Saying, keep in mind that during jury selection for trials in which the death penalty is a possible outcome, any potential juror who expresses opposition to the death penalty is excused. So, it’s hard to make the case that the government “is fulfilling the request of its citizens.”

      • just saying says:

        And in that same process, jurors who show prejudice to execute someone are also excused. The lawyer for the defense fails to invalidate the state’s case and does so so poorly that ordinary people neither prejudiced towards or against execution recommend it.

  6. A.S.F. says:

    And we all know that jurors never lie (even to themselves) about their intentions, prejudices and beliefs. I believe that our system of justice is one of the best in the world but it is certainly not infallible. To kill someone methodically in a manner that might cause human suffering makes us no better than the person being executed.

  7. tulip says:

    Why do people concern themselves with the killer’s rights and feelings? The murderer sure as heck didn’t care about his or her victim’s rights and feelings. Death by lethal injection is too merciful for some of these criminals.

    I realize people are trying to be civilized about the issue, but killers and torturers should be shown no mercy and should not have to wait 20 odd years for the deed to be done—what a waste. I do think that maybe 2 years should be allowed in order to have the lawyers file their appeals or whatever and that’s it.

    • Nancy N. says:

      “Why do people concern themselves with the killer’s rights and feelings? The murderer sure as heck didn’t care about his or her victim’s rights and feelings. Death by lethal injection is too merciful for some of these criminals.”

      Because if we don’t concern ourselves with it, we are no better than they are.

      Plus there is this little piece of paper you may have heard of called the Constitution…which prohibits cruel and unusual punishment. Try reading it sometime and actually following it – all of it, not just the parts you agree with. It’s what makes this country great.

  8. Geezer says:

    “Just saying.”
    I thought I’d say something daring and risky today like those two words.

    I can faintly see a man wearing glasses in front of a keyboard pressing
    the “delete” key repeatedly. I am overcome with fear, fear of being deleted
    and thrust into a cold and empty void in cyberspace – an electronic limbo.

    Just sa……………

  9. karma says:

    This story reminds me of bumper stickers.” Save the Whales” and “Pro Choice”

  10. Nancy N. says:

    “Winning an election by appearing to be more cold-blooded than your opponent is, at the very least, unseemly and, at worst, obscene.”

    And in that one sentence, Steve has summed up everything that is wrong with our justice system today. Judges are elected and run on being tough on crime – how long are the sentences they hand out, how many people have they locked up. Same thing with prosecutors.

    Even politicians who aren’t directly involved in the justice system run on how harsh they are on crime – what laws they passed to penalize criminals more, or make something new a crime, etc.

    And none of this has anything to do with true justice, or actual measurable effects on public safety. It’s all about looking tough.

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