THE DEATH PENALTY - TORTURE REFINED?
By Randy Coyne, National Board Representative

Presently, 36 states (including Oklahoma) and the federal government are in the execution business. All of these jurisdictions (save one) use lethal injection as the primary method of killing prisoners sentenced to death. Other apparently lawful execution methods include hanging, electrocution, and death by firing squad.

During the past year, Oklahoma prison officials have killed twice. On August 21, 2007, officials at the Oklahoma State Penitentiary at McAlester lethally injected Frank Duane Welch for the 1987 murder of Jo Talley Cooper, a 28-year-old Norman woman. And on June 17, just two months after the Baze Supreme Court decision, Terry Lyn Short died by poison for murdering Ken Yamamoto, an Oklahoma City University student in 1995.

Notwithstanding the biblical admonition, “thou shalt not kill,” the U.S. Constitution clearly contemplates the use of death as a punishment under certain circumstances and with certain restrictions. For example, although the Fifth and Fourteenth Amendments empower the government to “deprive” a prisoner of his life, before the government exterminates an inmate, it must first provide due process. Whatever the hell that is. Oh, I remember: It’s whatever the Court says it is.
The most meaningful limitation on the death penalty, though, is the Eighth Amendment’s ban on cruel and unusual punishment. Under current jurisprudence, simply killing a prisoner is not per se cruel and unusual. But you do have to mind your manners when going about putting a fellow human being to death. That’s because the Court has ruled that executions must not inflict “unnecessary pain.” Whatever the hell that is.

Measuring the pain suffered by those who the government kills is a slippery business. Those who might be in the best position to describe what sensations were experienced before death are, well, dead. But there have been pre-mortem indications of excruciating suffering endured by those whose executions may have been preceded by torture. Consider, for example, the 1999 electrocution of prisoner Allen Lee Davis, the first in Florida’s new electric chair. When 2,300 volts began coursing through his body, blood poured from Davis’ nose, onto the collar of his white shirt, and oozed onto his chest, leaving a stain the size of a dinner plate. In 1983, Jimmy Lee Gray died in Mississippi’s gas chamber, gasping desperately, moaning piteously and repeatedly banging his head against a steel pole. These and other equally gruesome executions, prompted officials in most states to switch to lethal injection, viewed as a more humane method of killing.

And yet, experience with lethal injection suggests that those in the execution business may also remain in the torture business. When Texas poisoned Stephen McCoy to death in 1989, his violent physical reaction to the drugs caused him to heave, gasp and choke. McCoy’s demise was so ghoulish that a male spectator fainted, crashed into another witness and knocked him over. When Oklahoma poisoned Robyn Parks to death four years later, Parks gasped and gagged violently, while the muscles in his jaw, neck and abdomen rippled spasmodically for 45 seconds. Similarly, in 1997, witnesses to Oklahoma’s execution of Scott Carpenter reported that within two minutes of the lethal poison entering his bloodstream, Carpenter “began to make noises, his stomach and chest began pulsing, and his jaw clenched.” Before death arrived, Carpenter’s body convulsed violently at least 18 times.

On April 16, 2008, the Supreme Court ended a moratorium on executions in Baze v. Rees, when it rejected the claims of death row inmates Ralph Baze and Thomas Bowling that Kentucky’s three-drug protocol used in lethal injections constituted cruel and unusual punishment. Baze and Bowling had argued that the Eighth Amendment’s prohibition on the “gratuitous infliction of suffering” required Kentucky to avoid inflicting more pain than is necessary to cause death.

Specifically, Baze and Bowling argued – without contradiction – that if not properly anesthetized by the first drug, sodium thiopental, the prisoner would suffer tortuous pain and agonizing death when the other two drugs, pancuronium bromide and potassium chloride, were injected. Moreover, even though a prisoner might be suffering excruciating pain, he would be unable to alert anyone to this suffering because the pancuronium bromide causes paralysis, and he would appear serene and comfortable to the executioners and witnesses. In other words, because Kentucky’s execution procedures created a significant and unnecessary risk of inflicting pain that could be prevented by the adoption of reasonable safeguards (eliminating the use of the paralytic agent), the Eighth Amendment was violated. The Kentucky case had broad ramifications inasmuch as most death states, including Oklahoma, use virtually the same three chemical sequence.

The Court had earlier held that the Eighth Amendment forbids “punishments of torture,” such as disemboweling, beheading, quartering, dissecting and burning alive, all of which share the deliberate infliction of pain for the sake of pain.
In Baze v. Rees, seven of the nine justices held that Kentucky’s lethal injection protocol does not violate the Eighth Amendment. According to the Court, to constitute cruel and unusual punishment, an execution method must present a “substantial” or “objectively intolerable” risk of serious harm. Only when an alternative execution procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of serious pain, will an Eighth Amendment challenge lie.
Within a month of the Court’s rejection of Baze and Bowling’s lethal injection challenge, filly Eight Belles placed second at the Kentucky Derby, broke both front ankles and was quickly lethally injected. Justice John Paul Stevens, one of the seven judges who voted to uphold Kentucky’s lethal injection procedures, said that Eight Belles probably experienced a more humane death than those who die on death row. As Justice Stevens had observed in his separate opinion in Baze v. Rees, the paralytic agent pancuronium bromide masks any outward sign of distress and creates a risk that an inmate will suffer excruciating pain before death occurs. It’s for that reason that pancuronium bromide, a drug used to kill humans, is widely prohibited for use in euthanizing animals. Also, the anesthetic used in euthanizing animals is longer-acting, which prevents the possibility of regaining consciousness before the cessation of respiration and heartbeat. The anesthetic used in human executions has a much shorter duration of effect, so, if there is any error in the drug administration, there is a higher possibility of regaining consciousness, thus the reason veterinarians do not use this anesthetic. As Stevens noted, “Kentucky may well kill [Ralph Baze and Thomas Bowling] using a drug that it would not permit to be used on [Kentucky Derby runner up Eight Belles].”

This point was not lost on Terry Lyn Short, who worked with animals before committing the murder that landed him on Oklahoma’s death row. In an interview shortly before his execution, Short was asked if he thought that lethal injection constitute cruel and unusual punishment. After acknowledging that it was a tough question, Short said, “I think the drugs they’re using is.
“I worked for a dog kennel there in Oklahoma. And I watched the veterinarian euthanize dogs, put them to sleep. And from what I understand the chemicals they use [in executions] is outlawed on animals. I think with today’s science and chemistry and stuff they probably could come up with something better.”

The Supreme Court decision which enabled Oklahoma to kill Short acknowledges that Kentucky’s three-drug protocol isn’t perfect, and encourages states to experiment to “come up with something better.” Whatever the hell that is.
On June 17, Oklahoma officials strapped Terry Lyn Short to a gurney at Oklahoma State Penitentiary in McAlester, and poisoned him to death using chemicals that a veterinarian wouldn’t use to destroy a dog.