On January 16, 2014, shortly after 10:00 a.m., a man takes his last walk down the narrow corridor toward the execution chamber. As he is strapped to a gurney and the curtains part, he stares into the eyes of both his children and the victim’s family. It is obvious that he is in a state of fear and anxiety. In fact, his lawyers had fought for a stay of execution, arguing that the new lethal injection protocol would result in a painful and excruciating death.
Prison personnel struggle for a couple minutes to find his veins and finally insert the needles. At least, he thinks, it didn’t take two hours to find his veins, which happened to a different inmate, in the same chamber several years prior. His mind also turns to the countless other botched executions in recent years. The warden asks if he has any last words. In a short, tearful statement he says “I’d like to say I’m sorry to Joy’s family and thanks for the letter. The kind words mean a lot. To my children, I love you. I’m going to heaven. I’ll see you when you get there.” The warden nods his head and the drugs begin to flow through the tubes and into his veins.
Thoughts run through his mind about the horror he put the victim through many years ago. He knows in his heart that his actions caused her and her unborn child to suffer a terrifying and brutal death. However, he would not go quietly either. Witnesses watch as the drugs are injected; later, they say he experienced “repeated cycles of snorting, gurgling, and arching his back, appearing to writhe in pain…It looked and sounded as though he was suffocating.” McGuire gasped for air for some 25 minutes while the drugs used in the execution slowly took effect and he was finally pronounced dead.
The execution of Dennis McGuire dominated the headlines as it swept across the country in January of 2014. Ohio used a new 2-drug protocol of hydromorphone and midazolam. It has sparked debates among both academics and the general public about the constitutionality of the death penalty. Is this a violation of the 8th Amendment, which bars cruel and unusual punishment? On this issue, the US Supreme Court has ruled that a violation will be found if the execution method causes unnecessary and impermissible suffering.
How States Use the Black Market to Acquire Banned Drugs for Executions
Until 2010, most states used a 3-drug combination for lethal injection. The first drug administered to the inmate was sodium thiopental, which acts as an anesthetic. The second drug was a paralyzing agent called pancuronium bromide, often referred to as Pavulon. The third, and final drug, was potassium chloride which stops the heart and untimely causes death.
The first drug in executions, sodium thiopental, was only produced by one U.S. manufacturer, Hospira, Inc. They made the radical decision that their goal was to save lives, not to end them! They banned their drugs from U.S. prisons for use in executions, but since the prisons failed to comply, they ceased all production including medicinal use. The prisons expanded their search for a new distributor abroad. However, German, Swiss, and British companies also refused to sell their drugs for use in executions. What next? Well the obvious – states resorted to obtaining the drugs on the black market (in addition to writing fictitious prescriptions!) The problem is, the drugs do not meet the minimum purity standards and their ingredients are questionable and, often times, unknown.
For example, in 2011, Tennessee obtained enough sodium thiopental to execute 6 prisoners. Tennessee refused to reveal their source, which was later found to be an unauthorized foreign producer. In the spirit of southern hospitality, they shared their booty with Alabama. However, before Alabama could execute prisoners, the sodium thiopental was seized by the DEA. The DEA went on to seize several other state’s supplies including Tennessee, Georgia, and Kentucky. They then initiated a formal investigation into where the states were getting their drugs.
Next, inmates contended in the lawsuit that “unapproved foreign thiopental will fail to anesthetize plaintiffs properly during execution, causing conscious suffocation, pain, and cardiac arrest. On March 27, 2012, a federal District Court held that foreign-manufactured sodium thiopental was improperly approved by the Food and Drug Administration for use in executions. The FDA was ordered to recall drugs from Arizona, Arkansas, California, Georgia, Nebraska, South Carolina, South Dakota, and Tennessee.” According to Judge Leon’s opinion, the foreign sodium thiopental “is a misbranded drug and an unapproved new drug” and “the FDA neither approved nor reviewed thiopental for safety and effectiveness.” The Judge continued saying “the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner’s needle.”
Pavulon, the second drug used in the 3-drug protocol, has been the most controversial. In fact, it has been banned from use in animal euthanasia in 42 states. Nonetheless, many of those same states use the drug as a paralyzing agent in their executions. The main criticism is that, if prison personnel misuse the first drug as discussed above, the inmate would be unable to express the excruciating pain they are experiencing because they are paralyzed but alert. Death row inmates in Kentucky filed a suit urging the state to switch to a more humane 1-drug protocol. Federal judges in California, Missouri, and Tennessee had already ruled that using Pavulon and the 3-drug protocol in executions is unconstitutional.
Since the shortage, states have been scrambling to revise their lethal injection protocols and discover new drugs to use in executions. Several states have either started using or plan to start using a 1-drug protocol which include propofol (the same drug that killed Michael Jackson) and pentobarbital. Again, the problem is these drugs have never been used in executions, and will have unforeseen consequences (including many more botched executions).
Is It Time to Abandon the Death Penalty?
Although I am an unwavering opponent of the death penalty, I will not go into a discussion about the 140 people who narrowly escaped the death penalty through absolute exoneration or the numerous moratoriums passed by states. Nor will I discuss the study commissions on the fact that the death penalty is more expensive than life imprisonment and that it has never been a deterrent to crime. These arguments do little to sway proponents of the death penalty. I would like to, instead, quickly mention the experience of Bob Welsh. Bob’s daughter Julie was killed in the Oklahoma City bombing. He was a strong opponent of the death penalty until the day she died, at which point, his views changed. He was not hesitant to express his opinion that “I didn’t even want a trial. I wanted him fried.” However, after years of reflecting, he realized that executing Timothy McVeigh was not going to bring his daughter back. In fact, unlike McVeigh, he is not a murderer and witnessing an execution often leaves the victim’s family feeling depressed and burdened with an unexplainable guilt. Bob is now an avid anti-death penalty activist and travels around the country sharing his experience.
Finally, take McGuire’s victim Joy Stewart, who was 22 years old and pregnant at the time of her murder. She was kidnapped, raped repeatedly, tortured and stabbed to death. Did McGuire deserve to die for this crime? Probably. However, is it wise to give the government the power to stoop to his level and use illegal tactics and torture to do so? According to the constitution that this country holds so dear, this method is a clear violation of the 8th amendment. More importantly, in my opinion, an answer in the affirmative will undoubtedly take us down a very dangerous road of unfettered government discretion on the value of one’s life.
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