Occasionally, a topic flares up amongst the daily news chatter and people suddenly take notice and think more deeply. A bit like the uncomfortable recollection of where eggs for the plate originally came from. Or something more serious like the world’s belated recognition that hundreds of school girls abducted in Nigeria might warrant some form of wider discussion. This event has already drawn plenty of social media activism and hashtaggery. It has now been through the full media cycle, with Michelle Obama’s input being hijacked to point out inconsistencies in the regard for kids in Nigeria and the thoughts for those killed by drones.
Similarly, over the last month lethal injection and the death penalty have been very much in the news thanks to the case of Clayton Lockett. Failing to get the desired response from the injection, after 10 minutes he “lurched forward against his restraints, writhing and attempting to speak. He strained and struggled violently, his body twisting, and his head reaching up from the gurney.” He finally died, some 43 minutes after proceedings commenced, apparently due to a massive heart attack.
Oklahoma has put a moratorium on further executions. New variants on the drug cocktails traditionally used have been scrutinised. The quality of staff involved has been derided (Dr Jay Chapman, designer of the three drug technique himself has said “It never occurred to me when we set this up that we’d have complete idiots administering the drugs.”) All of the analysis, however, seems to miss the reality of what was witnessed – people got to see the turmoil usually hidden by the second part of the drug mix. They had a forbidden glimpse of the torture that is usually masked, and they could no longer skate by.
How did we get here?
In the long history of capital punishment, many variants have been described. Way back in 1977 Dr Chapman, who sees no issues with medical practitioner assisting with executions, was on the lookout for a method as humane as putting down animals. Over three weeks he came up with a suggested cocktail of drugs to be injected. Thiopental, capable of producing general anaesthesia and thereby removing an awareness of what followed, was first. This was followed by the muscle relaxant pancuronium, a drug which stops the small packets of chemicals released by nerves to stimulate muscles from binding to their target, producing paralysis by stopping muscle movement. The final drug is highly concentrated potassium chloride to bring the heart to a standstill.
The recent spate of experimentation in regimes has come about because manufacturers of the anaesthetic component of this final trip have ceased permitting sale in the US. Various jurisdictions have tried sourcing thiopental or an equivalent and those options have now failed too. So they are left trying out hypothetical combinations at the time of death, secure in the knowledge that feedback will mostly not be an issue. This search for new options is the same one that led to Dennis Maguire being given a combination of midazolam, a sedative, and hydromorphone, a painkiller, which put Ohio in the firing line for its approach to lethal injection.
In desperation they have started using regimes that are likely to fail. An uncontrolled experiment on death row prisoners. Midazolam is not truly capable of producing general anaesthesia. It produces sedation. Most times, but not always, it will also produce amnesia for the events after it is given. Of course occasionally it will produce extreme agitation termed akathisia in the recipient. It’s not just the mild jitters either. It’s enough to make them a reasonable option for mixing paint.
Of course, when you have a three drug system and the injection starts going into the tissues instead of a vein while the muscle relaxant is going in, you leave a person aware of what is happening, and just weak enough that the best they can manage is a groan or an uncoordinated effort to lift their head. What is that feeling of weakness like? The best approximation I can come up with is to suggest that as you sit there, you take a breath out. When you go to breathe back in, take only as much air as clears your mouth. This is the amount of air you are left with as you try to breathe in and out.
See how long you last before your greedy lungs demand a deep breath. Now imagine experiencing that for 20 minutes. This is not the choking gurgle of the screen, but a silent or guttural asphyxiation. Imagine how much you’d try to cry out in the stillness of your breath. In other cases where the muscle relaxant works the prisoner would be left as a marble mask, even if their mind was racing. This time witnesses saw the turmoil, and they recoiled.
So unsurprisingly lethal injection has come under serious scrutiny in a response which fundamentally misses the point – we can’t excuse the death penalty because we thought we had a better way of killing.The Flawed Case Behind the Death Penalty
Articles had already been appearing suggesting a return to old methods or switching to a single drug lethal injection. Rather than pursuing the line of reasoning that it just needs fixing, surely the real question for discussion is whether there is any justification in the setting of law enforcement for violating the most basic human right of all – the right to life. To be able to justify such a violation would surely demand that the vast amounts of good flowing from the decision to devalue the significance of that one life overwhelmed any concerns about capital punishment.
It would have to be obvious that it went beyond extracting ‘an eye for an eye’ and produced genuine changes in crime rates through deterrence. It would be so efficient that it would save money that would be wasted on long term incarceration. It would not inflict ills on those convicted. Most importantly, you would surely expect that it provided benefits to victims’ families. Perhaps a sense that the grim pain surrounding the events is sealed up..
The thing is that none of these assumptions seem to hold. There is no convincing evidence that the death penalty deters those likely to commit terrible crimes. It costs millions more to navigate an individual through the capital punishment process and the other costs quickly add up. Exercising capital punishment rather than Life Without Parole is a sure fire way to ensure everyone convicted will go through multiple appeals to try and get free. That is more time and money. Of course with a death row population that contains way more non-Caucasian people than seems justifiable, the appeals might hold some water. Particularly given that up to 4% of convictions might be flawed.
More importantly, the assumption that execution automatically brings about peace for those close to the victim may well be flawed. What research has been done hints at the fact that closure is too complex and nuanced to be universally delivered by retribution and that Life Without Parole may provide more certainty for victims’ families to move on. It is not so much that revenge should be served cold, but that as a dish it is just as likely to leave the grieving half-satisfied at best.
A punishment that is more expensive, doesn’t provide deterrence, fails on delivery via any of a number of ways (with lethal injection leading the way) and doesn’t seem to help families all while eroding human rights is worthy only of chapters in history books. This is not just true in the US, but in any of the 22 countries who employed the death penalty in 2013.
There is a lot more discussion required to cover the full range of responses. The challenge for those advocating that any moratorium on execution become permanent is to make the issue broader than the comparative pharmacology of drugs authorities don’t really understand. It is a fundamentally bigger story about human rights. It deserves to outlive a hashtag.
If you’re after a longer examination of Life Without Parole vs Capital Punishment, you’d do well to look here. There’s also a really nice summary piece from the ‘BMJ’ just below. Of course, you could just watch 12 minutes of John Oliver.