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Stay of Execution

“I feel my whole body burning,” were Michael Lee Wilson’s last words in the Oklahoma State Penitentiary on January 9. Seven days later, it took Ohio inmate Dennis McGuire 15 minutes to die from a similar lethal injection that is only supposed to take four or five. On January 28, Missouri death row inmate Herbert Smulls appealed to his state’s Supreme Court for a stay of execution. Smulls argued that the untested drug cocktails used in Wilson and McGuire’s apparently excruciating deaths, soon to be used in his own, violated the Eighth Amendment, which prohibits “cruel and unusual punishments.” His request was denied, but the ruling turned out to be meaningless, as his execution took place four minutes before the court made its decision.

Across the country, the constitutionality of capital punishment has been the subject of a rekindled debate. At the state level, the January incidents involving misuse of experimental lethal cocktails have suggested violations of both the Eighth Amendment and procedural justice. But the problems don’t end with states. The federal prosecution in the Boston marathon bombing case is pursuing the death penalty as well, raising questions about capital punishment’s role as a tool for leverage in judicial proceedings. Not only would that violate the Fifth Amendment, it could be viewed as an abuse of governmental power.  Internationally, the shortage of regulated and normalized poisons, following a European Commission ban on the sale of barbiturates to American prisons, symbolizes European disapproval of America’s death penalty and a view that the United States projects an outdated and backwards stance on this subject, and strays from its ideals of enumerated rights. The perception of the United States as a key international peacekeeper and defender of human rights is deteriorating. In the midst of this crisis, 2014 has the potential to bring change to capital punishment policy.

The prevailing sentiment in the international community is that the United States — the only G7 country yet to abolish capital punishment — maintains antiquated judicial practices. According to European Commission Vice President Catherine Ashton, the 2010 policy restricting the sale of barbiturates used in lethal injections to American prisons “contributes to the wider European Union efforts to abolish the death penalty worldwide.” Since then, the European Commission has increased trade restrictions, banning eight new barbiturates that can be used in lethal injections. The Obama administration’s attempts to acquire the necessary drugs for lethal injections have bordered on desperation. In early 2011, facing a crucial pentobarbital shortage, the White House made a direct appeal to the German government for supplies, only to be flatly turned away by Vice Chancellor Philipp Rosler himself. “I noted the request and declined,” he said.

As a result of the shortage, American prisons have turned to compounding pharmacies, which manufacture drugs on demand using highly specific patents. The drugs used in Smulls’ and McGuire’s executions were from such compounding pharmacies, which are not held to the same Food and Drug Administration standards and regulations that typical pharmacies are. As such, the drugs they produce may contain impurities, as well as concentrations or compositions of chemicals that differ from what the standard drug cocktail contains. These compounding pharmacies have been party to the creation of novel and untested drug cocktails such as the experimental mix used in McGuire’s execution, which replaced the typical pentobarbital cocktail with a combination of the sedative midazolam and the painkiller hydromorphone. By using drugs from loosely regulated pharmacies, prisons are gambling with the label of pain-free executions to which they lay claim. The lack of F.D.A. controls makes adjustments to a cocktail difficult if it proves to be ineffective or painful and laces the process with guesswork.

William Ruddick, director and founder of New York University’s Center for Bioethics, draws parallels between compounding pharmacy drugs and street heroin. Because compounding pharmacy drugs are not held to the same standards as similar drugs produced in regular pharmacies, “one can’t form or rely on any generalizations about [their] effects.” Using such experimental drug cocktails — at least for the treatment of illnesses — has been considered unethical. According to Ruddick, medical professionals are responsible for using only thoroughly tested drugs unless “all fully approved drugs have failed to arrest dire diseases.” There is no reason to believe that the legal system and its prisons should be held to different standards.

Yet correctional facilities continue to purchase drugs from compounding pharmacies and use them in untested cocktails. Missouri prisons tested the purity of some of their lethal drug supply in an Oklahoma lab that also approved injections responsible for the 2012 meningitis outbreak that killed 64 people. One of Missouri’s own judges accused the state’s prisons of “using shadow pharmacies hidden behind the hangman’s hood” to supply the drugs necessary to sustain the fifth-highest death penalty rate in the United States.

While the constitutionality of capital punishment has long been a subject of fierce debate, the recent drug shortage and its aftermath have magnified the potential violations related to the use of the death sentence. According to David R. Dow, a death row lawyer and professor of law at the University of Houston, “the Eighth Amendment contains this idea that society’s standards of decency evolve over time, and so what is permissible in terms of punishment at one point in legal history can become impermissible later on.” As a result, what may have been legally permissible when the Constitution was drafted — or even in the 1970s, when lethal injection was first introduced — may no longer be legally permissible in 2014. The simultaneous deterioration in the quality of lethal injections and the perceived evolution in society’s standards for human rights, makes the violation of the Eighth Amendment even more blatant.

However, the process to prove such a violation is particularly difficult, even in light of recent events that have illustrated the cruelty of capital punishment. If a violation of the Eighth Amendment is claimed, the burden is placed on the defendant to prove that there is “needless suffering.” This has recently proven practically impossible for defendants, as it was for Smulls. In his case, Judge Beth Phillips ruled that speculation was not enough to ensure that the drug would cause needless suffering — while simultaneously conceding that it had been nearly impossible for Smulls to acquire the information that would have been needed to meet the court’s burden of proof.

The McGuire and Wilson cases affirm the difficulties of meeting that burden of proof. McGuire’s prison guards accused him of “putting on a big show,” founding their accusation on the fact that, despite Wilson’s comment about burning sensations, he didn’t “show any signs of physical distress.” Legally, the amount of pain that corresponds to “needless suffering” is that which inflicts “more than necessary to accomplish the objective of death,” explains Dow. But while this is a viable legal definition, proving that there is excessive pain is difficult. As Ruddick explains, there is “no way [for doctors] to establish before administration what a particular individual will experience,” and once administered, the lethal injection renders the person almost immediately unconscious, making it difficult to measure levels of pain. If McGuire’s 10 minutes of gasping are not evidence enough, there are few other ways to prove that a person is needlessly suffering. With evidence scarce and ignored by the courts, Dow believes that, in cases of capital punishment, “the burden of proof is excessively high; it is one that cannot be satisfied.”

Further aggravating the apparent violation of the Eighth Amendment is the fact that some prosecutors have begun denying the right to a pain-free execution, thereby rendering inmates’ constitutional recourse all but obsolete. After all, an execution is necessarily a harsh punishment, making the line between conducting one and conducting one cruelly and unusually especially thin. If a prisoner is already going to die, some would posit that the method of execution is irrelevant.

And like most death row inmates, Wilson, Smulls and McGuire were not innocent men. Both Wilson and Smulls were convicted murderers, and McGuire was convicted of the 1989 rape and murder of Joy Stewart. During McGuire’s appeal, the Ohio Appeals Court Assistant Attorney General Thomas Madden said: “You’re not entitled to a pain-free execution” — a statement many might agree with in light of McGuire’s crime. But this goes beyond the letter of the law, and denying the right to a pain-free execution may violate a principle regarding capital punishment established by the Supreme Court in 1947 with Louisiana ex rel. Francis v. Resweber. The case states that in order to uphold the concept of human dignity there cannot be “infliction of unnecessary pain in the execution of the death sentence.”

Regardless of whether Smulls’ legal team could have reasonably satisfied the burden of proof placed on him by the courts, his execution — four minutes before his stay of execution was officially denied — is still a violation of procedural justice and a clear example of the chaos that occurs during the last stages of any death penalty case. As Dow explains, once signed, execution warrants “have a time frame during which the execution can occur. Frequently, litigation is still going on at the time or is initiated after the warrant is signed. What’s special about this event is that the two events passed each other in the night.” The execution took place before the legal process had fully run its course. Because of the chaos caused by a death sentence, the attempts to save a client often continue until the last possible moment up until the execution itself. As a result, procedural justice can suffer. Dow holds that abolishing capital punishment “would clean up the legal system” and explains that “death penalty cases approach lawlessness” because lawyers can appeal cases indefinitely, effectively keeping them in the courts until the sentence is carried out. This is to say that rather than ensure a fair process regardless of result, capital punishment cases manipulate the system towards securing the desired conclusion: the death penalty.

The discussion of egregious legal interpretations at a state level feeds directly into the debate regarding capital punishment’s constitutional violations and distortions at the federal level. In the well-publicized Boston marathon bombing trial, defendant Dzhokhar Tsarnaev is currently pleading innocent. However, according to Professor Daniel Medwed of Northwestern University Law School, the prosecution may be using the death penalty as a bargaining chip. Ever since the reinstitution of capital punishment in federal cases in 1988, the attorney general has authorized 500 federal defendants for capital punishment, yet only three of those defendants have been executed. There is speculation that on the federal as well as state level, capital punishment is pursued and authorized in expectation of extracting a plea deal from the defendant prior to entering the trial. “Even though the government is not supposed to use the death penalty as a bargaining tool, the reality is that a lot more cases are announced as death penalties than actually result in a [death penalty] trial,” says Richard Dieter, executive director of the Death Penalty Information Center.

In Tsarnaev’s case, the prosecution has sought the death penalty in part to avoid seeming soft on domestic terrorism, but Medwed suggests that there may also be subtler bargaining at hand. If the prosecution were not pursuing the death penalty, the defense would certainly want to take the trial out of Boston because of media attention and the proximity to the event, while the prosecution would want to keep the trial in Boston to capitalize on the high emotions surrounding the case. With the pursuit of the death penalty, the defense may now want to keep the trial in Boston instead. While 70 percent of Americans favor the death penalty for Tsarnaev, only 33 percent of Massachusetts residents do. By keeping the trial in Boston, the chances of a death sentence may be substantially lower, favoring the defense.

But the history of capital punishment’s role as a tool for the prosecution to gain leverage suggests that the defense may have preempted the prosecution, and pled innocent in anticipation of their call for the death penalty. Such a move by the defense would have left open the possibility for a plea deal. This would allow Tsarnaev to get away with a lighter penalty than many would like, and would effectively allow him to evade a death penalty trial. Such legal gymnastics display a concerning distortion of the legal system — one that has its roots in manipulation and overuse of the death penalty by prosecutors. The use of the death penalty in overcharging is also indicative of how it may be used to violate the Fifth Amendment and its assertion of the right to avoid self-incrimination, since the death penalty can be used as a bargaining chip precisely to push a defendant to plead guilty.

While overcharging — used in over 90 percent of felony cases — is standard in the legal system and a vital tool for prosecutors, its involvement in death penalty cases is different because it is necessarily a severe measure. Self-implication, or pleading guilty, isn’t necessarily wrong, but if an individual is coerced into such a measure under the threat of death, then it could be a violation of the Fifth Amendment. This line of reasoning is supported by the federal government’s explicit ban on the use of the death penalty to extract a plea.

Capital punishment is doing a curious thing to the American legal system. Not only is it tarnishing the United States’ international image, it is systematically violating constitutional rights and muddling the domestic legal system. But recent months have provided some hope for change. Georgia, amongst others, is contesting the secrecy surrounding the drug cocktails produced by compounding pharmacies. A Missouri judge has blocked certain pharmacies from selling drugs used in lethal injections to prisons. And perhaps most encouragingly, Governor John Hickenlooper of Colorado placed a block on an upcoming execution. The solution may be something akin to the 1972 to 1988 federal moratorium on capital punishment. The moratorium was instituted by the Supreme Court in Furman v. Georgia precisely for something strikingly similar to what we see today: a chaotic web of regulations surrounding the death penalty. But the system can still be cleaned up. An enhanced understanding of the interplay between procedural justice, the Fifth Amendment and the Eighth Amendment offers a chance to set stronger precedents for upholding constitutional rights in the face of capital punishment.