Jonathan Loewenberg, JHU:
Last April, the Oklahoma Department of Corrections attempted to execute death row inmate Clayton Lockett with an untested combination of three drugs administered in a lethal injection. The execution went terribly wrong. Lockett began to writhe and gasp after he had already been declared unconscious and ultimately died of a heart attack 43 minutes later. The three-drug cocktail consisted of an intravenous injection of midazolam meant to cause unconsciousness, followed by rocuronium bromide, a paralytic, and then potassium chloride, a heart-stopping agent. At issue is the first drug: midazolam, a drug that has not been approved by the FDA and whose effects are not fully known when it is given in combination with other lethal agents.
Midazolam has also been used as a sedative in lethal injection protocols in Florida, Ohio, and Arizona. The recent uptick in its usage has resulted from many major pharmaceutical firms refusing to supply states their drugs for lethal injections due to the opposition that many of these firms hold to the death penalty. European sanctions against selling drugs used for executions have led many states to start experimenting with mixtures of drugs intended for other uses, including midazolam, without full knowledge of their effects. Some states have implemented secrecy laws regarding the drugs used in lethal injections in order to protect the identities of firms, which has drawn a great deal of criticism from public advocates as it can be seen as prior censorship and interference with the public’s right to freedom of speech and freedom of the press.
The problematic nature of midazolam’s use in the state’s lethal injection protocols has prompted a challenge by three death row inmates in Oklahoma on grounds that use of the drug in lethal injections violates the eighth amendment’s prohibition on cruel and unusual punishment in a case named Glossip v. Gross. Such a challenge is incontrovertibly warranted, as this drug has provably failed to maintain a state of unconsciousness for inmates during lethal injection executions, an affliction tantamount to torture, which violates fundamental standards of humanity and common decency that are pillars of civil society.
Capital punishment is already widely debated in the political arena, and the consensus among the overwhelming majority of countries is that it is an archaic and inhumane punishment. Most developed countries have abandoned this punitive measure; however, certain American states still allow it. Nevertheless, the U.S. still executes the fifth most people in the world each year. Only Saudi Arabia, Iraq, Iran, and China execute more frequently.
The penalty has also shown itself to be racially biased, with 77% of death row defendants having been executed for killing white victims since 1977, even though African-Americans make up about half of all homicide victims. This and the fact that the death penalty claims innocent lives, as projects such as the Innocence Project have shown, make the penalty itself problematic. There are also concerns about its cost effectiveness, arbitrariness, and the unfair nature of certain rules in our criminal justice system such as the ability to death qualify juries. The reality is that we can’t administer this penalty in a fair and uniform way, as human error is inexorable in our criminal justice system, and prosecutor discretion plays too large a role in deciding whether or not the penalty is sought for certain crimes.
I point out these statistics and complications because I believe that if states are carrying out a penalty of such an unfair and arbitrary nature, where there is a high chance for human error, it is imperative that they do so as humanely as possible. A humane procedure for an inhumane punishment may sound counterintuitive, and many death penalty proponents say that it doesn’t matter how the process is carried out as long as the person ends up dead, but human dignity is an important consideration when an irreversible punishment is inflicted.
The writhing and convulsing witnessed during Clayton Lockett’s unsuccessful execution was an appalling sight to see for both loved ones of the inmate and spectators, not to mention Lockett’s anguish, as he raised his head and cried out “oh, man,” according to some sources. When the procedure for capital punishment amounts to prolonged torture of an inmate, there is a point where the line of proportionality of punishment is crossed and we become savages instead of civil beings.
In Franz Kafka’s “In the Penal Colony,” an explorer, presumably from a more civilized nation, observes the last use of an elaborate torture and execution device in a barbaric and antiquated colony. The intricate execution procedure that the officer attempts to demonstrate to the explorer eventually malfunctions and backfires on the officer, killing him. The machine self-destructs when it must inscribe the words “be just” on the officer’s body, as it cannot fulfill its purpose. Just as the time had come to replace the old system of justice with a new and more humane one in the colony, the time has come to replace the draconian methods of execution practiced by some states in the U.S.
We are no longer in an age where blind justice can suffice and we can just turn our backs as what is equivalent to state-sanctioned torture proceeds. The Supreme Court has done a good job in the past of chipping away at the complex patchwork that is the death penalty in the U.S. Rulings such as Roper v. Simmons (2005), which banned the use of the death penalty on minors, and Atkins v. Georgia (2002), which banned executing mentally retarded criminals on the basis that it was cruel and unusual punishment, have effectively regulated whom the penalty is applied to, but the time has come for more regulation of the procedures and practices, including the pharmaceutical compounds, that administer the grave punishment. I hope that the court continues to chip away at the penalty in a manner that is rational with its ruling in Glossip v. Gross. However, the regulation should not end with midazolam, as a penalty that is not capable of being administered in a fair and humane manner should not be administered at all.