Thursday, July 24, 2014

What is the proper method of execution?

Michael Kiefer of the Arizona Republic has a story about witnessing the execution of Joseph Wood on Thursday afternoon. I recommend you read it.

Mr. Wood was supposed to be executed by lethal injection. When most people hear that term, I think they imagine the condemned receiving an injection, quickly passing out and dying. According to Mr. Kiefer, that is not what happened to Mr. Wood.

As Mr. Kiefer reports, about 5 minutes after the state's doctor confirmed that Mr. Wood was sedated, Mr. Wood opened his mouth, he then opened it again about three minutes later and appeared to burp. Two minutes after that Mr. Wood's "mouth opened wider and wider. Then it didn't stop." Mr. Kiefer writes that Mr. Woods "gulped like a fish on land. The movement was like a piston" and that Mr. Wood had stomach convulsions. Since execution witnesses in Arizona only hear the sound of the execution when the state's doctor turns on his microphone (the witnesses watch on a closed circuit TV feed), it was some time before Mr. Kiefer and the other witnesses heard what was happening. When they finally did hear the sound, Mr. Kiefer said he heard a "noise louder than I can imitate" which sounded like a swimming-pool filter taking in air (since I live in a climate where swimming pools are not that common, I have no idea what that sounds like). This gasping for air went on for more than an hour and a half. Mr. Kiefer counted 640 gasps for breath but could not see them all because there were times when the doctors were in front of the camera and the witnesses could not see Mr. Wood. That comes out to more than 7 gasps per minute or about one every 8.5 seconds. 

According to this Associate Press story, the execution lasted long enough that Mr. Wood's attorneys filed emergency appeals at all three levels of the Federal Court system and in state court. Mr. Kiefer and another reporter on the scene started to think that the execution was not going actually kill Mr. Wood.

Mr. Wood eventually died. Mr. Kiefer called the execution "death by apnea." A spokesperson for the Arizona Attorney General had a different view. The AP story quotes her  as saying that she was "surprised by how peaceful it was" and claiming "there was absolutely no snorting or gasping for air." It was apparently the spokesperson's first execution and Mr. Kiefer's fifth. So that may explain the difference in perspective. Dahlia Lithwick, has a post about that discrepancy. 

Other witnesses to the execution were unconcerned about whether the execution was conducted appropriately. For example, relatives of Mr. Wood's victims were not in an empathetic mood. The AP quotes Richard Brown, the brother-in-law and son-in-law of the victims as saying "This man conducted a horrifying murder and you guys are going, 'let's worry about the drugs,' Why didn't they give him a bullet? Why didn't we give him Drano?"

I do not want to hazard a guess about how effective Drano is when it comes to executions. But Mr. Brown's question about bullet usage was also recently asked by United States Court of Appeals for the Ninth Circuit Chief Judge Alex Kozinski. The Ninth Circuit, sitting en banc, recently declined to overturn an injunction halting Mr. Wood's execution (that injunction was overturned by the Supreme Court). Judge Kozinski wrote an interesting dissent to that decision. You can read it here (it begins on the third page).

Judge Kozinski starts about by saying that "until three decades ago, executions were carried out by means designated for that purpose alone" i.e., electric chairs, gas chamber, hanging, and firing squad. Judge Kozinski notes that despite the fact that these methods of execution were found not to violate the Eighth Amendment's prohibition on cruel and unusual punishment states generally stopped using these methods and began using drugs for executions. Judge Kozinski writes that "[s]ubverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure" which has resulted in "unending efforts" to undermine and discredit lethal injection as a form of execution. 

According to Judge Kozinski, "[u]sing drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful-like something any one of us might experience in our final moments." In talking about the "serene and peaceful" death, Judge Kozinski cites to a concurrence by Justice Scalia where Justice Scalia wrote "How enviable a quiet death by lethal injection. . . ." Whether Mr. Wood experienced a quiet death is a subject on which the witnesses appear to differ.

Judge Kozinski goes on to say that executions are not serene and peaceful but instead
They are brutal and savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
Judge Kozinski then goes on to posit which method of execution besides lethal injection would be best employed by the government and settles on the firing squad.  He writes,
Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.
In a sense, Judge Kozinski's dissent reminds me of the protesters outside abortion clinics. Those protester's frequently have signs or pictures of what an aborted fetus (or aborted baby depending on where one falls in the abortion debate) looks like. Both want people to consider the reality of what is happening and decide whether the activity is one that the government should either sanction or participate in.

What do you think Mr. Torvik? Are attempts to execute people by lethal injection misguided? Would the national debate about the death penalty become more serious if executions were by firing squad, hanging, gas chambers, or the electric chair? If society is to have a full and robust debate about the death penalty, should executions be broadcast to the public rather than just to a few witnesses?

As an aside, according to Wikipedia the last execution by hanging in the United States took place in 1996, the Washington Post reports that the most recent execution by gas chamber was in 1999, the most recent execution by firing squad was in Utah in 2010, and that the most recent execution by electric chair took place in 2013. Most states, however, do not use all-or any-of these methods of execution.


  1. Interesting post.

    Judge Kozinski's argument is fairly compelling, at least if you're already inclined to oppose the death penalty. If you support the death penalty, I'm not sure this would affect you all that much.

    I'm also not sure that Kozinski is right that we can't come up with a pretty good lethal injection routine. My understanding of the standard course is that they give one shot to knock the guy out (anesthetize him, put him in a medically induced coma), one shot to paralyze him, and then one shot to stop the heart from beating. If the guy is properly comatose and properly paralyzed, its seems like this ghastly gasping shouldn't occur. And I suppose it usually doesn't occur, which is why this semi-botched execution is newsworthy.

    Also, it's not like the other forms of execution won't be botched. A firing squad can miss, or at least miss the vital organs. Electric chairs can be ineffective. Etc. It's not clear to me why the kind of bad stuff (gasping for air, apparently) that happens during a bad lethal injection is worse than the bad stuff that can happen when other forms of execution go awry. On the contrary, assuming the guy was properly anesthetized, his body's unconscious fight for life perhaps isn't so horrific.

    Finally, it's not like lethal objection is some obscure medical procedure that is only occasionally practiced - at least not if you include animals. Vets are euthanizing pets with lethal injections all over the country all the time. Observers of these lethal injections "generally describe the method as leading to a quick and peaceful death." I suppose it's possible that we're not quite there with human executions yet, but I doubt there's any technical impediment to peaceful executions using lethal injections.

    1. It may be that there isn't a technical impediment to peaceful executions but this isn't about technique. The the three-drug protocol you mention is no longer the standard practice because of a shortage of one of the drugs. The US manufacturer of sodium thiopental stopped producing it and Europe bans exporting the drug to the US because it is used in executions. As a result, some states are using a two-drug method that is apparently less effective as evidenced by the news recently regarding executions in Oklahoma, Ohio, and Arizona. The focus of the curent controversy is on the drug used as an anesthetic, midazolam. The National Institute of Health says that the side effects for midazolam include uncontrollable shaking, seizures and difficulty breathing. So it would appear that assuming that the condemned is properly anesthetized is not warranted under the present circumstance.

    2. This completely undermines Kozinski's argument, doesn't it? We don't need firing squads, we just need that third drug.

    3. Perhaps. It depends on what Judge Kozinski's argument really is. I am not entirely sure he actually wants a return to the firing squad. In any event, there doesn't seem to be a reality-based way of getting the third drug at present (btw there are some issues with sodium thiopental as some studies have found that people wake up unexpectedly when using it). I suppose there also isn't a reality-based way of returning to firing squads.


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