OPINION
12/01/2018 08:00 am ET Updated Dec 03, 2018

America Is In The Middle Of A Death Penalty Crisis

Our capital punishment practices are unconstitutional. Period.
Getty/HuffPost
Our capital punishment practices are unconstitutional. Period.

This past July, eight death row prisoners in Alabama requested to be killed via gas chamber, fearful their deaths would be painful and prolonged if lethal injection was used instead.

In August, when Tennessee executed a man via lethal injection, he jolted and pushed against his restraints as he choked and gasped for air.

In October, South Dakota executed an intellectually disabled man who participated in the state’s Special Olympics as a child.

Just this month, Tennessee executed a man with an electric chair first used in 1916. Days later, four other Tennessee death row prisoners requested death by firing squad, instead.

Capital punishment has a sordid history in this country ― one that many Americans know little about. But if ever there was a time to unearth that past and do away with the death penalty entirely, it’s now: Drug manufacturers are doing all they can to keep their products out of our execution practices. States are resorting to increasingly dangerous and deceptive measures to ensure executions continue; some have even returned to methods once thought too barbaric to endure. Botched executions are a common occurrence. And who are we sentencing to die? Overwhelmingly, poor people, people of color, people with intellectual disabilities and mental illnesses ― and, sometimes, the innocent.

The death penalty in America is in crisis.

The U.S. has employed a variety of execution methods in its short history, including firing squads, gas chambers, hangings and electrocution. Such methods often led to gruesome deaths. It wasn’t uncommon for prisoners to catch on fire during electrocutions, such as in the case of John Evans, who was executed in April 1983 via Alabama’s electric chair. Witnesses had to be dismissed from Jimmy Lee Gray’s September 1983 gas chamber execution in Mississippi; they were horrified by his throaty gasps for air. Gray eventually died after repeatedly banging his head against a steel pole inside the chamber.

There are no wealthy people on death row.

Eventually, officials began looking for a more humane way to execute prisoners. Enter Jay Chapman, an Oklahoma medical examiner. When a state legislator reached out to him in the late 1970s for advice, Chapman suggested using a three-drug cocktail to kill prisoners: a barbiturate to anesthetize the person; pancuronium bromide to paralyze the body and halt breathing; and potassium chloride to stop the heart. He did this despite having zero pharmacological training.

This three-drug cocktail (with some variations) was used throughout the U.S. for about 30 years. But in 2011, the European Union implemented an export ban on the relevant drugs. Born out of the EU’s staunch opposition to capital punishment, this strategy has been successfully preventing states from obtaining the proper drugs for the better part of the past five years.

This hasn’t stopped America from executing its death row prisoners; instead, authorities have started concocting dangerously experimental drug combinations or returning to older execution methods. This means our prisoners have become human guinea pigs, since there’s no way to test these drug combinations before using them.

Midazolam, for example, is now frequently used during executions to induce a pain-free unconsciousness before death, but is startlingly ineffective. In 23 of 27 autopsies of individuals executed using the drug, signs of froth or foam were found in the lungs ― pulmonary edema. In layman’s terms? Prisoners given midazolam experience liquid in their airways and blood entering their lungs while they’re still breathing. They are, essentially, drowning to death. Why? Because midazolam is not really an anesthetic. It’s used in medical settings for low-level sedation, not total unconsciousness.

If ever there was a time to unearth that past and do away with the death penalty entirely, it’s now.

Many U.S. states don’t require officials to reveal how they obtained lethal injection drugs, thanks to a host of secrecy laws passed in recent years. These laws are meant to shield the people involved in administering executions. Now, they shroud the entire process. A Department of Corrections director in Arkansas once gave $250 cash to an unknown supplier in exchange for midazolam. Other states turn to compounding pharmacies (companies that make drugs to order), allowing the buyer to bypass mainstream pharmaceutical suppliers (and regulations). On Wednesday, BuzzFeed News broke a story on lapsed safety and other violations at the previously secret compounding pharmacy that supplies Texas with its lethal injection drugs. The pharmacy’s license has been on probation for two years after the Texas State Board of Pharmacy discovered it had compounded the wrong drug for three children (resulting in one child being rushed to the emergency room) and blatantly forged quality control documents.    

These practices are dangerous and can lead to botched executions. Eric Robert was executed in 2012 with a dose of pentobarbital produced by a compounding pharmacy. His eyes actually opened during the lethal injection ― a clear sign the drug wasn’t working. An investigation later revealed the batch of pentobarbital used to kill him was contaminated. And executions can easily be botched in other ways, too, like when needles are improperly placed, which is how Clayton Lockett ended up dying a torturous death during his infamous 43-minute execution in 2014.

For their part, pharmaceutical companies continue to fight back as states increasingly look for ways around restricted drug sales and export bans. When Oklahoma first used pentobarbital instead of the standard sodium thiopental in 2010, Danish pharmaceutical company Lundbeck restricted the sale of the drug for execution use. British manufacturer Hikma followed in Lundbeck’s footsteps. Even Pfizer is now restricting distribution of drugs that could be used to execute prisoners.

The Supreme Court has ruled that for the death penalty to be considered constitutional, it cannot be cruel and unusual, and it cannot be arbitrarily applied. An estimated 17,250 people were murdered in the U.S. in 2016, and 31 new death sentences were imposed. Were the 31 people who received death sentences responsible for the grisliest crimes? Were they the most irredeemable? No and no. Race, socioeconomic status, the county in which the crime was committed and the quality of the lawyers ultimately played the most decisive roles in who received a death sentence. There are no wealthy people on death row.

Our prisoners have become human guinea pigs, since there’s no way to test these drug combinations before using them.

And America regularly gives death sentences to innocent people, too. This month, Clemente Aguirre became the 164th person to be exonerated from death row since 1973. Troy Clark and Daniel Acker, who were executed within a 24-hour period in Texas this past September, never wavered in their proclamations of innocence. About one out of every 25 people sentenced to death are innocent of the crime for which they’re convicted, and we know of at least 15 people who were executed despite strong evidence of their innocence.

We also execute an alarming number of people with intellectual disability and mental illness. Research published in October found that roughly 25 percent of people executed in the U.S. over an eight-year period had been diagnosed or treated for mental illness. And between 1976 and 2002, the U.S. executed 44 people with intellectual disability (formerly referred to as mental retardation). The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that executing inmates with “mental retardation” was unconstitutional. Nonetheless, America continues to execute people with intellectual disability.

Lastly, we cannot discuss the death penalty in America without tracing its roots to lynching and other forms of racial violence and oppression in the South. Almost 80 percent of death row prisoners since 1976 were sentenced to die for killing a white person, despite the fact that roughly 50 percent of murder victims are black. Only 20 white people have ever been executed for the murder of a black person. And despite comprising only 13 percent of the national population, 41.7 percent of death row prisoners are black.

For many Americans, the idea of a torturous execution is acceptable ― justified, even. But this doesn’t change the fact that the American death penalty as we know it violates our Constitution’s ban against cruel and unusual punishment and our constitutional guarantee of due process and equal protection under the law. Our death penalty practices are unconstitutional. Period.

Death sentences, executions and public support for capital punishment are in decline across the U.S. Each death-row exoneration chips away at public faith in the system’s ability to get it right, and every botched execution serves as a stark reminder that there is no way to ensure death comes without suffering.

It’s unlikely ― though not impossible ― that the Supreme Court will abolish the death penalty in this generation. And despite President Donald Trump’s recent endorsement of some criminal justice reform measures, he remains a staunch death penalty advocate. It’s therefore more likely that the fight to end capital punishment will head to the states in the coming years.

Our death penalty practices are unconstitutional. Period.

There’s cause for optimism there: In just the last 10 years, six state legislatures have voted to abolish capital punishment, and district attorneys across the country are declining to seek the death penalty with more and more frequency. Just last month, the Supreme Court of Washington struck down the state’s capital punishment statute, writing that “the death penalty is invalid because it is imposed in an arbitrary and racially biased manner.” In doing so, Washington became the 20th state to do away with the death penalty. Twenty-seven U.S. states still have capital punishment fully on the books; the three remaining states allow for the death penalty but currently have a gubernatorial moratorium on executions.

Still, some states continue fighting to retain the right to kill prisoners. They fight to uphold a fallacy of justice: the notion that suffering and pain are somehow redemptive. They fight to uphold a punishment that is ineffective, costly and long shunned by the rest of the industrialized Western world. No person ― regardless of their worst act ― should be subjected to a death like that at the hands of their own government.

It should shock us to hear that prisoners are now fighting for the right to choke to death in a gas chamber as nitrogen surrounds them, or to be hit by a barrage of bullets, or to be strapped to a chair and electrocuted by decades-old equipment in order to avoid a botched lethal injection. The death row inmates in Tennessee currently asking for death by firing squad are arguing such a death would actually be less painful than what our lethal injection protocol has become.

If lethal injections were supposedly our last chance for humane, dignified executions, and prisoners are now requesting archaic and barbaric alternatives, at what point do we concede? At what point do we accept that the death penalty has no place in a democratic country that professes to follow the Constitution and care about human rights?

Now. That point is now.

Hannah Riley is communications manager at the Southern Center for Human Rights in Atlanta. She previously worked in criminal justice reform at the Innocence Project in New York. 

 
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