Arizona's execution this week of convicted double-murderer Joseph R. Wood III took so long that his attorneys had time to file another request for a stay and get a Supreme Court justice on the phone while it was going on. According to an Arizona Republic reporter who witnessed the execution, Mr. Wood gasped more than 600 times in the nearly two hours it took him to die. Another witness from a local television station said the condemned looked "like a fish on shore gulping for air."
It was the fourth botched execution so far this year. In January, after Oklahoma began administering drugs to murderer Michael Wilson, he said aloud, "I feel my whole body burning." A few days later, the Ohio execution of Dennis McGuire, who had killed a pregnant woman, took 25 minutes. A witness described his clenched fists and gasps for breath, audible through the glass wall of the death chamber. In April, it took convicted murderer and rapist Clayton Lockett 43 minutes to die after Oklahoma officials began administering lethal drugs. He reportedly thrashed and writhed on the gurney, fought against his restraints and tried to speak. The state halted the execution but Lockett died anyway of a heart attack.
Our views on capital punishment are well established. We oppose it on a variety of practical and philosophical grounds, and we argued strenuously for its repeal in Maryland. But the recent events in Ohio, Oklahoma and Arizona should give pause even to supporters of the death penalty. The spate of botched executions is no coincidence. It is occurring as states have begun experimenting with new procedures and drug protocols to compensate for the unavailabity of one of the drugs that has traditionally been used in executions since they resumed in the 1970s. The Supreme Court upheld the constitutionality of executions using the standard protocol in 2008, but it is increasingly clear that circumstances have changed and their conclusions are no longer valid.
The case Baze v. Rees was a challenge by death row inmates in Kentucky to that state's use of the three-drug protocol that was by then standard in most states but new in Kentucky. They argued that the method of execution violated the Eighth Amendment's ban on cruel and unusual punishment, but both the Kentucky Supreme Court and U.S. Supreme Court disagreed — though the latter decision was a fractured one with justices in the majority presenting a variety of opinions on the matter.
The plaintiffs in Baze conceded that the traditional triple-drug combination Kentucky used was humane if appropriately administered, but they raised concerns that it could become unconstitutionally cruel if the first drug, a sedative, was not properly administered. The Supreme Court held that the plaintiffs had failed to establish a "substantial risk of serious harm" or an "objectively intolerable risk of harm." Accidents and mistakes occur, the plurality of justices in the case conceded, but they do not make a method of execution unconstitutional so long as they are the result of an "isolated mishap."
The justices understandably professed an aversion to putting themselves in a position of rendering judgment on every particular method of execution that may come along, but this year's botched executions demonstrate that some of the bedrocks on which the Baze decision were founded are no longer valid.
All sides agreed in Baze that the proper administration of sodium thiopental eliminated constitutional questions because it produced a coma-like state in which the condemned would feel nothing. But that is precisely the drug that is no longer available — the last U.S. manufacturer of it stopped production in 2011, and the European Union has instituted a ban on exports of the drug to the U.S. because of its use in executions here. Some states still have limited supplies of the drug, but it has a shelf life of only four years, so soon none will be available. States like Ohio, Oklahoma and Arizona have gone ahead anyway with new, experimental drug combinations, but there are serious questions about their efficacy, both because they do not have a significant track record of success and because states are often getting the drugs from lightly regulated compounding pharmacies.
The Supreme Court declined to intervene in Wood's case, agreeing with a lower court that he had no First Amendment right to know more details about the composition and origin of the drugs that would be used to kill him. But after his botched killing and the three before it, the court surely has a duty to revisit its conclusions from the Baze case. When more than 15 percent of the executions conducted so far this year have resulted in prolonged deaths and/or evident suffering, does that not rise to the level of "substantial risk of serious harm"? When the next condemned prisoner makes an Eighth Amendment claim, can the justices be so sure that such problems would represent an "isolated mishap"?
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