Death Penalty’s Latest Mutation:
Experimenting on Human Beings

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.

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.