Monday 6 July 2015

Should killers in the United States still be executed?                           

In 1976, I sent a report to the Canadian Parliament and the Canadian Senate and in my report; I said that there is a danger of executing someone for murder who may very well may be innocent. One of the members of Parliament actually quoted me in the session on capital punishment.  At the request of the director of Ontario Legal Aid, who was responding to a request of a member of parliament, I found a case where the lawyer for an innocent man who was hanged had been classed by a previous court that he was insane when he was representing his client at the original trial, the Ontario court of Appeal and the Supreme Court of Canada. That information was also brought to the attention of Parliament. The Canadian Parliament soon after abolished capital punishment. 

In the United States alone, there have been as many as 100 persons on death row who were found innocent and released from prison before they were executed in error. If there ever was a good reason for abolishing capital punishment, this is it.                             

However, I would be less honest if I didn’t say that in my opinion there are cases when killers should be executed. In a UN conference held in Caracas in 1980 where I was invited to address the delegates, I spoke about certain kinds of killers who should be executed. They included; serial and mass murderers, terrorists, those who torture people to death and those who produce and participate in snuff movies. .Later in a UN conference held in Milan in 1985, I addressed the delegates and spoke about terrorists and said that they should all be executed.

Some of the States in the United States execute almost all those persons convicted of first degree murder. The issue of whether or not capital punishment is contrary to the United States Constitution has been raised in the past in the United States Supreme Court. In this article, I am going to bring to your attention a recent decision of that Court that was published on June 29, 2015. The issue in that case was whether or not the method of execution is a form of cruel punishmentan issue that has been raised in the past in that Court.

There have been instances when the executions of condemned prisoners in the United States were indeed very cruel. It wasn’t done deliberately. They simply were botched executions.

On August 10, 1982 in the State of Virginia, Frank J. Coppola’s electrocution was botched. It took two 55-second jolts of electricity to kill Coppola. The second jolt produced the odor and sizzling sound of burning flesh, and Coppola's head and leg caught on fire. Smoke filled the death chamber from floor to ceiling with a smoky haze. He finally died.           

One April 22, 1983 in Alabama, John Evans’ electrocution was botched. After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evans's leg. The electrode burst from the strap holding it in place and caught on fire. Smoke and sparks also came out from under the hood in the vicinity of Evans's left temple. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. Again the doctors found a heartbeat. Ignoring the pleas of Evans's lawyer, a third jolt of electricity was applied. The execution took 14 minutes and left Evans's body charred and smoldering.                             

On September 2, 1983 in Mississippi, Jimmy Lee Gray was executed by asphyxiation (gas chamber). Officials had to clear the room eight minutes after the gas was released when Gray's desperate gasps for air repulsed the witnesses. Jimmy Lee Gray died banging his head against a steel pole in the gas chamber while the reporters counted his moans (eleven, according to the Associated Press). It was later revealed that the executioner, Barry Bruce was drunk prior to and during the procedure.          

On April 6, 1992 in Arizona, Donald Eugene Harding was executed by asphyxiation. Death was not pronounced until 10 1/2 minutes after the cyanide tablets were dropped. During the execution, Harding thrashed and struggled violently against the restraining straps. A television journalist who witnessed the execution, Cameron Harper, said that Harding's spasms and jerks lasted 6 minutes and 37 seconds. "Obviously, this man was suffering. This was a violent death. it was an ugly event. We put animals to death more humanely." Another witness, newspaper reporter Carla McClain, said, "Harding's death was extremely violent. He was in great pain. I heard him gasp and moan. I saw his body turn from red to purple." One reporter who witnessed the execution suffered from insomnia and assorted illnesses for several weeks; two others were "walking vegetables" for several days.     

The previous four examples of many similar instances of botched executions are why the United States chooses not to use these two methods of executions any longer. All 35 states that have death row inmates, as well as the U.S. military and the federal government, use the injection of fatal drugs as their primary method of execution.  But is this method of execution also a cruel means of bringing about the death of a condemned person?

Lethal injection was first adopted in 1977 in Oklahoma. The condemned are strapped to a gurney while two needles are inserted into their veins and the drugs are pumped in. This method is often seen as the most humane method of executions because the condemned are supposed to be put into a state of unconsciousness before the two fatal drugs are inserted into them. However, inmates have been known to writhe and talk during poorly carried out injections.

Until 2009, all states using this method of execution used a three-drug protocol that included a sedative, a paralytic and then the final, fatal drug to stop the heart. Because of drug shortages and legal challenges that claimed that the paralytic drug could mask an inmate's suffering, states are now experimenting with several other different protocols. Some states are adopting a one-drug method that is essentially a massive overdose of a sedative. Other states are keeping a multi-drug protocol but experimenting with different drugs.

On September 12, 1990 in Illinois, Charles Walker was executed by lethal Injection. Because of equipment failure and human error, Walker suffered excruciating pain during his execution. According to Gary Sutterfield, an engineer from the Missouri State Prison who was retained by the State of Illinois to assist with Walker's execution, a kink in the plastic tubing going into Walker's arm stopped the deadly chemicals from reaching Walker. In addition, the intravenous needle was inserted pointing towards Walker's fingers instead of his heart, prolonging his execution.

On December 13, 2006 in Florida, Angel Diaz was executed by lethal Injection. After the first injection was administered, Mr. Diaz continued to move, and was squinting and grimacing as he tried to mouth words. A second dose was then administered, and 34 minutes passed before Mr. Diaz was declared dead. At first a spokesperson for the Florida Department of Corrections claimed that this was because Mr. Diaz had some sort of liver disease.  After performing an autopsy, the Medical Examiner, Dr. William Hamilton, stated that Mr. Diaz’s liver was undamaged, but that the needle had gone through Mr. Diaz’s vein and out the other side, so the deadly chemicals were injected into soft tissue, rather than the vein. Two days after the execution, Governor Jeb Bush suspended all executions in the state and appointed a commission “to consider the humanity and constitutionality of lethal injections.

These two examples are just two of many other cases of botched executions by lethal injection.

The Supreme Court of the United States dealt with the issue of whether or not fatal injections given to condemned prisoners were humane or inhumane. Their decision was reached a published on June 29, 2015.  But first, I will give you the background of the murder that the condemned man, Richard Glossip had supposedly participated in.

Glossip was the manager of a Best Budget Inn at Oklahoma City. His employer, Barry Van Treese, the owner of the Motel and the murder victim suspected that Glossip was stealing money from the proceeds of the rentals. After Van Treese’s murder, Glossip was arrested for planning the murder of his employee, by talking Justin Sneed, the maintenance man with the Motel to kill Van Treese. Sneed later admitted that he killed Van Treese with a baseball bat in one of the Motel’s rooms and he implicated Glossip.

Glossip was convicted of first degree murder and sentenced to death. He appealed and the matter was heard in the Court of Criminal Appeals of Oklahoma. The court refused to reverse the verdict of the jury.

Glossip didn’t appeal to the Supreme Court of the United States to reverse his conviction but rather to state that the method of execution in Oklahoma was cruel. His lawyer argued that a 500-milligram dose of midazolam will not render condemned prisoners to be unable to feel pain associated with administration of the second and third drugs fatal drugs. 

This issue had been previously heard in a lower court by several other condemned prisoners. After a three-day evidentiary hearing, the District Court in Oklahoma had denied the prisoner’s motion. It held that the prisoners failed to identify a known and available alternative method of execution that presented a substantially less severe risk of pain. The Petitioners had also failed to establish a likelihood of success on the merits of their claim that the use of midazolam violated the Eighth Amendment. The Tenth Circuit affirmed the District Court’s ruling. The Eighth Amendment states in part that cruel and unusual punishments shall not be inflicted on anyone.

Because capital punishment in the United States is constitutional, there must be a constitutional means of carrying it out. After Oklahoma adopted lethal injection as its method of execution, it settled on a three-drug protocol of (1) sodium thiopental (a barbiturate) to induce a state of unconsciousness, (2) a paralytic agent to inhibit all muscular-skeletal movements, and (3) potassium chloride to induce cardiac arrest. 

Anti-death-penalty advocates then pressured pharmaceutical companies to prevent sodium thiopental (and, later, another barbiturate called pentobarbital) from being used in executions. Unable to obtain either sodium thiopental or pentobarbital, Oklahoma decided to use a 500-milligram dose of midazolam, a sedative, as the first drug in its three-drug protocol.

The problem however is whether or not the use of a 500-milligram dose of midazolam (a sedative) is the appropriate drug to be used to ender the condemned prisoners to be fully unconscious before receiving the fatal drugs.

During the original appeal, the State’s expert presented persuasive testimony that a 500-milligram dose of midazolam would make it a virtual certainty that an inmate will not feel pain associated with the second and third drugs.

Midazolam is fast-acting barbiturate sedative that induces a deep, coma-like unconsciousness when given in the amounts used for lethal injection. Then a paralytic agent, which “inhibits all muscular-skeletal movements is injected and paralyzes the diaphragm, thereby stopping respiration. The diaphragm is located at the lower end of a person’s belly and controls the breathing of the person’s lungs. When it is paralyzed, the person can breathe in once but cannot breathe out, hence that person suffocates. Finally potassium chloride or pancuronium bromide, vecuronium bromide, or rocuronium bromide, is injected into the prisoner`s vein to induce cardiac arrest. It follows that if Midazolam fails and the prisoner is still conscious when the second fatal drug is inserted into his or her body, the agony of suffocating to death can be horrendous.  

It seems to me that the viability of the IV access point is the single greatest factor that contributed to the difficulty in administering the execution drugs in the past. There is no evidence that a 500-milligram dose of midazolam injected properly in the right direction of the prisoner’s vein will not render condemned prisoners to be unable to feel pain associated with the administration of the second and third drugs fatal drugs. 

My readers can judge for themselves how much distance there is between the principal argument against requiring prisoners to identify an alternative drug to put them in a state of unconsciousness and the view, that the death penalty is categorically unconstitutional.

The District Court did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution. There are four points at the outset of the court’s analysis.

First, they reviewed the District Court’s factual findings under the deferential “clear error” standard. This standard does not entitle a higher court to overturn a finding “simply because it is not convinced that it would have decided the case differently.

Second, petitioners bore the burden of persuasion on this issue. Although the petitioners expended a great effort attacking peripheral aspects of the testimony of Dr. Evans’ (testifying for the State), they made little attempt to prove what is critical, i.e., that the evidence they presented to the District Court establishes that the use of midazolam will absolutely or very likely to result in needless suffering.

Third, numerous courts have concluded that the use of midazolam as the first drug in a three-drug protocol is likely to render an inmate insensate to pain that might result from administration of the paralytic agent and potassium chloride.

Fourth, challenges to lethal injection protocols test the boundaries of the authority and competency of federal courts. Although the Appeal Courts must invalidate a lethal injection protocol if it violates the Eighth Amendment, federal courts should not “embroil themselves in ongoing scientific controversies beyond their expertise. Accordingly, an inmate challenging a protocol bears the burden to show, based on evidence presented to the court, that there is a substantial risk of severe pain.

The Petitioners argued that midazolam is not powerful enough to keep a person insensate to pain after the administration of the second and third drugs. The petitioners further argued that even if midazolam is powerful enough to induce unconsciousness, it is too weak to maintain unconsciousness and insensitivity to pain once the second and third drugs are administered.

The District Court found that midazolam is capable of placing a person at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs and the higher court was not prepared to overturn that lower court’s ruling. The petitioners’ experts in the Court of Appeal acknowledged that they had no contrary scientific proof that the injection of midazolam wouldn’t effectively put a person into a sustained state of unconsciousness.

Some people will say of course that the ability of 500 miligrams of midazolam to render a person insensate to the second and third drugs has not been subjected to scientific testing nor could it be. However, if 500 miligrams wasn’t enough, the executioner could increase the dosage.

The  State Court of Appeal said, “When a method of execution is authorized under state law, a party contending that this method violates the Eighth Amendment, bears the burden of showing that the method creates an unacceptable risk of pain. Here, petitioners’ own experts effectively conceded that they lacked evidence to prove their case beyond dispute. Based on the evidence that the parties presented to the District Court, we must affirm their decision. Testimony from both sides supports the District Court’s conclusion that mmidazolam can render a person insensate to pain.” unquote

A 500-milligram dose is never administered for a therapeutic purpose and it hadn’t been used on a condemned man so it is difficult for anyone to ascertain if the 500 miligram dosage is effective in bringing he condemned prisoner into a state of unconsciousness before being given the two fatal drugs.

That statement of the State Court of Appeal reminds me of days gone by when an accused person was tied to a chair and submerged under water and after a few minutes of being under water, the person was brought to the surface. If person was still alive, he or she was deemed guilty and if dead, the person was deemed innocent. Either way, it was a win for the State.

The petitioner argued that difficulties with Oklahoma’s execution of Lockett and Arizona’s July 2014 execution of Joseph Wood establish that midazolam is sure or very likely to cause serious pain. We are not persuaded. Aside from the Lockett execution, 12 other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems.

The Supreme Court responded by saying that there is no consensus among the States regarding midazolam’s efficacy because only four States (Oklahoma, Arizona, Florida, and Ohio) have used midazolam as part of an execution. Petitioners have said that “it is difficult to regard a practice as ‘objectively intolerable when it is in fact widely tolerated.” In fact 36 States had adopted lethal injection and 30 States used the particular three-drug protocol at issue in those states.

The Court also said, “But while the near-universal use of the particular protocol at issue supported our conclusion that this protocol did not violate the Eighth Amendment, we did not say that the converse was true, i.e., that other protocols or methods of execution are of doubtful constitutionality. That argument, if accepted, would hamper the adoption of new and potentially more humane methods of execution and would prevent States from adapting to changes in the availability of suitable drugs.” unquote

The Supreme Court said, “The petitioner argued that difficulties with Oklahoma’s execution of Lockett and Arizona’s July 2014 execution of Joseph Wood established that midazolam is sure or very likely to cause serious pain. We are not persuaded. Aside from the Lockett execution, twelve other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems for condemned. Moreover, Lockett was administered only 100 milligrams of midazolam, and Oklahoma’s investigation into that execution concluded that the difficulties were due primarily to the execution team’s inability to obtain an IV access site. And the Wood execution did not involve the protocol at issue here. Wood did not receive a single dose of 500 milligrams of midazolam; instead, he received fifteen 50-milligram doses over the span of two hours. And Arizona used a different two-drug protocol that paired midazolam with hydromorphone, a drug that is not at issue in this case.  When all of the circumstances are considered, the Lockett and Wood executions have little probative value for these present purposes.” unquote

The Court then said, “Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.”  That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.” unquote

For an appellant lawyer to make such a stupid statement in an appeal court he is appealing to is a sure way to piss off the jurists in that court.

The Supreme Court of the United States finally said, “For these reasons, the judgment of the Court of Appeals for the Tenth Circuit is affirmed.” unquote
The reasons did not include the outlandish statement made by Glossip’s lawyer.

Richard E. Glossip will be put to death by lethal injection. As to when,  I haven`t the slightest idea.   

In law, the public relies on juries to make judgments about accused persons  and their crimes that are brought before the jurors. The fact that their verdicts may vary across cases is an inevitable consequence of the jury trial  which is the cornerstone of our system of judicial court procedures. But when a punishment is authorized by law—if you kill you are subject to death—the fact that some defendants receive mercy from their jury no more renders the underlying punishment “cruel” than does the fact that some guilty individuals are never apprehended, are never tried, are acquitted, or are pardoned.

Where the death penalty is cruel is that it entails delay, thereby subjecting inmates to long periods on death row and all that time, thinking of their pending and inevitable deaths. However, that is brought upon by themselves because of their appeals. Some delays have lasted for a decade or more.

That is why in 1985 when I addressed the United Nations Seventh Congress on the Prevention of Crime and Criminal Justice held in Milan, I recommended that terrorists who murder their victims and are condemned to death should have the transcript of their trials turned over to the Supreme Court of the land and if the court after studying the transcript of their trials is satisfied that the trials were just, fair and conducted properly, then the executions should be carried out within days. The same could apply to ordinary murderers. That way, they won’t linger for years on death rows at the expense of the taxpayers—expenses in some instances that are as much as a million dollars per inmate.

Of course that defeats my other argument that condemned persons who claim that they were innocent all along should have the opportunity to prove that they are innocent. From 1973 until 2004, 7,482 people in the United States were sentenced to death. Among them, there were 117 exonerations that took place in during those 31 years; 107 of them took place among those who were awaiting execution. Another 10 were exonerated by legal proceedings that were initiated after the threat of their executions had been removed.

For this reason, I am merely suggesting that only those who are clearly guilty should be executed as soon as possible. Eyewitness testimony is not always valid and I am always suspicious of the testimony of prisoners who claim they overheard a confession of a fellow inmate or the testimony of a confederate to the crime. Further, some confessions of the accused turn out to be suspect also. Making the determination that an accused really is guilty can be validated if DNA evidence places the accused at the site of the murder. Video camera evidence is also persuasive.

As I mentioned earlier in this article, in Canada and other countries that have abolished capital punishment, we are not faced with this problem. If while the convicted murders are serving their life prison sentences and are later deemed to be innocent, they can be released. And in Canada, they will be richly rewarded with a large sum of money. One man who spent more than twenty years in prison for a murder he didn`t commit, was released and given $10 million dollars tax free by the government.

That pleased me to no end because in 1969, I headed a task force in Canada of legislators, judges, law professors and highly respected lawyers whose task was to report to the Attorney General of Ontario as to whether or not innocent persons sent to prison should be compensated. Our report said that they should and that later became the law in Canada. 

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