Arizona takes lead on death penalty, will others follow?

Arizona takes lead on death penalty, will others follow?

Most debate over the death penalty addresses whether or not it should ever be carried out.

Until the death penalty is abandoned or declared unconstitutional, however, there is an equally important debate we need to have over the methods we allow state officials to use in executing a condemned prisoner.

A society’s choice of execution methods says as much about its values as does the endorsement of capital punishment itself. But as recent executions in Arizona and elsewhere have shown, the reality of an execution is uncomfortable. Nearly all of us look away, trusting that the executions conducted in America will be humane.

We shouldn’t.

The Supreme Court has long acknowledged the principle that it would be unconstitutional during an execution to inflict torturous pain. But in Glossip v. Gross, a deeply divided 5-4 decision issued in 2015, the Court concluded it was unable, due to procedural limits on its scope of review, to strike down a three-drug execution protocol that in reality does inflict such pain.

That protocol – one in which a state employee first injects the prisoner with a sedative rather than anesthesia, then injects a drug that paralyzes the prisoner’s body, and finally injects a lethal drug that stops the heart – is inherently and deeply flawed.

Because the sedative – a benzodiazepine known as midazolam – cannot sustain deep unconsciousness the way anesthesia can, it does not prevent the prisoner from experiencing either the feeling of suffocation that the second, paralyzing, drug inflicts, or the feeling of liquid fire that follows the large and fatal dose of the third heart-stopping drug.

The second drug — the paralytic — also has one other notable and insidious side effect: By preventing the prisoner from vocalizing or moving in response to pain, the paralytic drug conceals his suffering from public view, and thereby helps disguise the brutal reality that using these lethal drugs without first providing anesthesia imposes excruciating pain.

Arizona has now taken an important step forward. That state’s last execution, of Joseph Wood, gained international notoriety as the longest execution in American history. Although that gruesome two-hour spectacle, during which the prisoner visibly gasped and choked 660 times while the state administered 14 times its planned dosage of lethal drugs, involved a different drug protocol than the one in Glossip, it shared the common flaw of depending upon midazolam to do a job it inherently is unsuited to perform. 

Now, however, while not abandoning executions or acknowledging wrongdoing, Arizona has become the first state to commit itself irrevocably not to use midazolam or any other benzodiazepine in a lethal injection ever again.

On Dec. 22, 2016, the U.S. District Court for the District of Arizona entered an order that binds Arizona to its decision; upon “any notice” that Arizona is contemplating changing its mind, the court will enjoin Arizona from using midazolam. To carry out executions in the future, Arizona will have to look to other lethal injection protocols that do not involve a risk of torturous pain, or else will have to ask the legislature to authorize another means of execution.

The questions Arizona is confronting are questions every state that intends to carry out executions should now ask. That’s especially true given the decisions by a number of pharmaceutical companies, who design their products to heal and not to kill, to prohibit sales to states for use in lethal injections. Those decisions have caused some states to pause, while others are looking to questionable sources of lethal drugs.

Regardless of one’s views about the death penalty, and notwithstanding limitations on execution drug sales, there is no excuse for a torturous execution.

Burning someone at the stake would not become constitutional just because the state had no humane alternative. Yet several states continue to use a midazolam protocol that paralyzes and then burns the prisoner alive from the inside, while failing first to provide anesthesia. 

Alabama’s grisly execution of Ronald Smith on Dec. 8, 2016, reflects the problem. Witnesses saw Smith gasp, heave, cough, and clench his fists, all indications that the prisoner was not deeply unconscious and that the midazolam-based protocol had not fully camouflaged the prisoner’s intense pain. Yet Virginia and Ohio each plan to use this same midazolam-based protocol – for the first time in either state – in executions slated for January and February 2017.

Arizona’s wise decision should prompt officials in Virginia and Ohio to reconsider their plans. It is time for all state officials in death-penalty states to relinquish the fiction that a midazolam-protocol is humane and follow Arizona’s lead.

Mark E. Haddad is a co-chair of the Supreme Court and Appellate Practice Group at Sidley Austin LLP, which serves as counsel to the plaintiffs in First Amendment Coalition et al. v. Ryan, a case challenging several aspects of Arizona’s lethal injection protocol.

By Mark E. Haddad

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