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May 20, 2009

Executions go forward with apologies (and without a hitch?) in Missouri and Texas

As detailed in this AP story, two murderers "spent some of their last moments apologizing for their crimes before they were put to death six hours apart in Texas and Missouri, which executed its first convict in four years."  Here are some specific details:

In a lengthy, written final statement, Dennis Skillicorn expressed sorrow for the 1994 murder of a Richard Drummond, who stopped to offer help after a car carrying Skillicorn and two other men stalled along Interstate 70.... 

Early Wednesday, Skillicorn mouthed words to his wife and two spiritual advisers as the first drug was administered to him. Soon, he appeared unconscious.  He was pronounced dead at 12:34 a.m., 11 minutes after the procedure began....

In Huntsville, Texas, meanwhile, Michael Lynn Riley apologized repeatedly in the moments before he received lethal injection Tuesday evening and became the 15th condemned prisoner executed in the nation's busiest death penalty state....

Marcus Taylor, the now-retired Wood County district attorney who prosecuted Riley and sought the death penalty, witnessed the execution.  "For those people that may think death penalty cases don't get proper examination, this is certainly evidence that's not true," Taylor said. Riley had been locked up longer than his 23-year-old murder victim lived.

While he didn't volunteer for execution, Riley had asked friends to not pray that he receive a reprieve, and he repeated that sentiment to friends who witnessed his death.  "I told you years ago that I was ready," he said.  Eight minutes later, after urging his fellow death row inmates to "stay strong" and that "Fleetwood is out of here," using his death row nickname, Riley was pronounced dead.

I believe that these executions bring the US total for executions to 29 in the year 2009.  Also, I believe there has now been a total of 66 executions since the Supreme Court upheld the constitutionality of standard lethal injection protocols in Baze.

Though the Baze litigation did not ultimately seem to achieve too much, I cannot recall hearing a single report of a botched lethal injection protocol since the ruling.  These two recent executions, like all the others since the Baze execution moratorium ended, seemed to go off without a hitch. 

Thus, I suppose the defendants and defense attorneys behind all the lethal injection litigation should take pride in their success.  These folks often asserted that their goal was just to make sure executions were done without excessive pain or other problems.  And it would seem that every execution since Baze has gone forward without excessive pain or other problems.

May 20, 2009 at 08:05 AM | Permalink

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Comments

Good for them. At least they left the Earth with some modicum of dignity.

Posted by: federalist | May 20, 2009 9:59:04 AM

The Baze litigation may not have achieved much, but lethal injection litigation has sure slowed down executions in the US.

Posted by: federalist | May 20, 2009 11:55:07 AM

"And it would seem that every execution since Baze has gone forward without excessive pain or other problems."

That we know of. Of course, since the second drug paralyzes the condemned, you'd never know if there was excessive pain. Or a problem like the anesthetic wearing off. Which was the point of Baze's claim, and is why we don't do it to dogs.

Posted by: Def. Atty. | May 20, 2009 12:50:11 PM

Seeing that other states are able to get going again I almost have to wonder if California is using legal wrangling as a dodge. The officials can simultaneously claim that they are pro death penalty and that the delays aren't their fault because federal courts won't let them proceed. In the meantime they don't do anything to try and force the federal courts to act.

Posted by: Soronel Haetir | May 20, 2009 12:57:04 PM

"...the Baze litigation did not ultimately seem to achieve too much..."

You do not call saving the $billion business of death penalty appeals "much"?

I would like to know what you consider to be "much."

Posted by: Supremacy Claus | May 20, 2009 1:44:23 PM

"These folks often asserted that their goal was just to make sure executions were done without excessive pain or other problems."

And you believed them? Can I interest you in buying a bridge? It's in a very nice location between San Quentin and Pelosiville, with a great view of Alcatraz, perfect for a sentencing fan.

But seriously folks, the fact that the execution teams know they are under intense scrutiny should be sufficient to prevent repeats of the horror stories we heard before Baze.

Soronel, there is no federal stay in effect in California. There was a state admin. law issue that should be resolved in a month or two. I don't doubt that the anti side will ask the federal court for a stay, but language in the Baze opinion should preclude the issuance of one.

Posted by: Kent Scheidegger | May 20, 2009 2:10:22 PM

Def. Atty, here's a question, if the paralytic does its job, why would we assume that the drug preceding the paralytic did not? Wouldn't it be weird to have the IV insertion work better after the passage of time?

Posted by: federalist | May 20, 2009 5:25:15 PM

You can't assume any consistent set of facts about a particular iteration of the 3-drug protocol. Different individuals will have different circumstances--some executions will be quicker, some longer, some require multiple insertions, some not, etc.

I am not assuming that there will be consistent failures. On the contrary, we can assume that many, even most, go according to plan. What I am pointing out is that in human events, not everything goes according to plan every time. And if the anesthetic fails, and the paralytic works, you will never know about the excruciating pain. (It is known that potassium chloride, the third drug and actual heart stopper, causes excruciating pain in the absence of anesthesia.)

I am not an expert in this area, but my understanding is that the anesthetic is, relatively speaking, both fast to act and fast to wear off. It is well possible that it happens in some executions--how many no one knows, but in the long run, at least some. And as long as the paralytic is used, it is unlikely anyone but the condemned will ever know.

The paralytic is unnecessary to the process. Its only function is to protect decorum, at the possible cost of covering up botched jobs. Adequate dosage of anesthesia is enough to do the job without the paralytic, and assure painlessness of the process as well. At least that's my understanding from having skimmed some of the Baze briefing and the press accounts.

Screwups may be rare, but in the long run it's near certain there will be some. Even if the record in Baze didn't show a sufficient level of risk to require the Court to step in as a constitutional matter in a given individual case, there were several calls along the way for policymakers to fix the problem--esp. as there is no good reason other than inertia for adhering to current practice. Of course, despite these judicial appeals to the policymakers, we haven't heard of any administrative or legislative rush to fix the protocol despite its known flaws.

Posted by: Def. Atty. | May 21, 2009 12:16:00 AM

Def: There is a 90% chance your and my death will be prolonged, agonizing, and humiliating. We have committed no crime. Explain why it is so important that your client have a perfect, painless, quick death.

Isn't all this Baze stuff all a pretext, and you will move on to the next 1 million potential pretexts, to generate lawyer jobs, with the condemned as a fungible commodity?

Posted by: Supremacy Claus | May 21, 2009 1:18:42 AM

My question, DefAtty, which you have done so well to avoid was a simple one--if the paralytic gets into the bloodstream (and the only way for that to happen would be a good insertion), then it stands to reason that the anesthetic got there too. And since they give enough anesthetic to knock out a horse . . . .

"short-acting" is misleading. With the amount of pentathol given, the guy wouldn't be getting up any time soon.

Posted by: federalist | May 21, 2009 10:24:31 AM

Def. Atty,

I don't recall which state this came from, but one of the opinions our host highlighted from a state that actually does carry out a few executions each year had a similar challenge. The convict's own anesthesiologist could not name a dose of barbituate that would guarantee to kill. He could not even offer a calculation for doing so.

Before an alternative method is to be used it needs to be shown to be as reliable as the current procedure. I think SCOTUS got this one right insofar as steps are taken that make unreasonable pain unlikely the procedure is suffiently humane.

Posted by: Soronel Haetir | May 21, 2009 11:34:03 AM

federalist,

No intention to mislead or avoid questions here. I'm raising good faith doubts based on the facts as I understand them, and so are you. Neither one of us is a death penalty lawyer or an expert on the facts here. I hope we don't get into the ad hominem style of debate that is unfortunately common among some commenters here.

You're assuming one IV insertion that keeps working. Reasonable enough in the average case, but it won't happen 100% of the time. If there's a problem with the first insertion after the anesthetic goes in, and they have to do a second insertion, there's room for delay. Not every insertion is easy or quick; the Baze record was full of those facts. With delay, comes the possibility that the anesthetic wears off.

You're also assuming a fact we don't know: "with the amount of pentathol given, the guy wouldn't be getting up any time soon." This is precisely one of the fact questions critical to the dispute. My understanding is that the anesthetic can wear off in the amount of time that a botched execution could take, and that there are at least a couple of recorded instances of condemned prisoners waking during the process. I may be wrong, and I don't have the facts at hand to prove them here. But I also think you don't have the basis to be 100% confident that the anesthetic is always effective, every time, for as long as it takes.

What I am fairly confident of is that the paralytic serves no purpose, that it poses a risk of masking problems, and that it has been outlawed in several states for veterinary executions for this among other reasons. I believe this was brought out during the Baze and related lawsuits, and (apologies for repetition here) that even though the courts did not step in, there have been calls for policymakers to fix what is recognized to be a flawed protocol.

Though I'm open about not having all the facts, I understand a few things to be undisputed in the debate: (1) potassium chloride causes excruciating pain. (2) IF the anesthesia were in any instance to wear off, you wouldn't know once the paralytic takes effect. (3) Similarly, if the condemned is feeling pain, you wouldn't know once the paralytic takes effect. (4) You can do the job without the paralytic.

With those facts not in dispute, my question is, if there is any possibility of the anesthetic wearing off during the process, and we know the result will be excruciating pain, then why use the paralytic?

P.S. I'd also note that the goal here (at least as far as my advocacy goes) is not a perfect, pain-free execution. If some pain is inevitable in death, and our society has chosen death as an acceptable penalty, then so be it. In a world of imperfect choices, personally I wouldn't have a problem with the return of the firing squad, or hangings done with appropriate care. But what we know about lethal injection with potassium chloride is that if the pain is felt, it is excruciating. If we intend to avoid that result, we shouldn't use a drug that serves no purpose except to ensure that if we're causing excruciating pain unintentionally, we'll never know.

Posted by: Def. Atty. | May 21, 2009 12:07:30 PM

Mr./Ms. Haetir,

I think you're responding to a different proposal, which was, why not just do it with one drug--a huge dose of the anesthetic? Sounds like a good idea to me, but maybe it's not possible for the reasons you describe. I don't know.

That's not my suggestion here. I am simply questioning the use of the paralytic, which serves only to (a) make everything look calm when it may not be; and (b) ensure that if there are serious problems we won't know.

Posted by: Def. Atty. | May 21, 2009 12:13:12 PM

Mr./Ms. Haetir,

Going back and re-reading, I actually did suggest doing it only with the anesthetic, which does seem to me to be a good idea if possible. As you point out it may not be. That would be good to know more about.

But that was an aside to my main point, which is, the paralytic keeps us from knowing if a lethal injection is really as free from pain or problems as it appears.

Posted by: Def. Atty. | May 21, 2009 12:20:19 PM


My understanding is that the paralytic is used because even in cases where the condenmed is fully anesthitized the potassium chloride is likely to cause twitching and other involuntary movements. Untrained observers would likely mistake such movement, regardless of whether the prisoner is actually concious for movement caused by pain.

Posted by: Soronel Haetir | May 21, 2009 12:44:02 PM

DefAtty, you're missing the point. In order for the nightmare scenario to occur, the anesthetic would have to not get there, but the paralytic and KCl would, which presupposes a line that was bad miraculously getting better. That seems a stretch.

With respect to the "short acting", well, the doses of pentathol in all protocols that I know of are strong enough to be lethal or to knock the guy out for a good long time (i.e., longer than the protocol takes).

Posted by: federalist | May 21, 2009 1:29:13 PM

Also, every protocol I've seen described calls for starting two lines before any drugs are administered. Now, I will admit that I've seen descriptions of actual executions where this part of the protocol was not followed(usually due to poor vein quality on the prisoner) and that is a problem.

Also, during those executions where the second line is used the protocol or informal practice generally requires a second dose of pentathol to be given before switching to either the paralytic drug or potassium cloride.

Posted by: Soronel Haetir | May 21, 2009 1:46:26 PM

Def. Atty.'s suggestion of a single-drug protocol begs the question. If a single (massive) dose of barbiturate is good enough to kill on its own, why on earth would it not be good enough to put an inmate into a coma in which no pain could be felt? The answer is that it is good enough. The barbiturate dose in the 3-drug protocol is a lethal dose in itself. No inmate will wake from that dose if it is properly administered. And the 2nd and 3rd drugs serve a completely legitimate objective as well. They end the execution within a reasonable amount of time. The barbiturate on its own can take 30 minutes or more to produce death.

Most jurisdictions, if not all, use a 2nd IV so that, if the 1st fails after the barbiturate is administered, the 2nd and 3rd drugs are redirected to the 2nd IV. Thus, there is no possibility that the barbiturate will wear off before the remaining chemicals are administered. Federalist is right. The possibility of failure only exists at the time both IVs are inserted, and before any drug begins to flow.

In short, the whole concept of excruciating pain here is a red herring. The only pain involved is the pain that might result from repeated IV insertions. If you've ever had a phlebotomist miss a vein during a blood draw, you know it's a minor irritant at worst.

Posted by: Ed | May 21, 2009 9:30:21 PM

Ed,

I will disagree somewhat, the needles used for blood draws are very thin. A needle big enough to push the fluid volumes needed during executions are significantly larger so multiple sticks are likely to be painful on their own. There are local shots that can be used but they tend to make veins collapse so would probably be contraindicated for an already difficult insertion. An easier method to make the insertion easier would be to have the prisoner drink lots of fluid beforehand but I am not aware whether this option is made available to prisoners.

I have experience with this due to needing medical treatments with similar fluid volumes a few times a year.

Posted by: Soronel Haetir | May 21, 2009 11:00:29 PM

Instead of getting tangled up in all the complications involved in administering lethal injections, why not use a firing squad or a bullet to the head? Wouldn't death be instantaneous?

Posted by: Alpino | May 22, 2009 1:27:40 AM

Alpino,

I believe firing squads (at least chest aimed ones) have gone out of favor due to unpredictability, possibly mess as well. A head aimed firing squad may be humane in that death is instantanious and painless but might well be challenged on dignity grounds.

A head shot with any caliber that will reliably kill is going to create an extremely gruesome mess and a nasty job for any mortician to fix up. The progress of methods of execution seem to be in the direction of leaving the body as intact as possible. Nitrogen suffocation would work extremely well for that but would be somewhat more complicated.

Lethal injection seems like a reasonable middle ground of safety and effeciency, especially compared to a likely alternative like poison gas which has huge safety issues for the executioners.

Posted by: Soronel Haetir | May 22, 2009 4:05:33 AM

I believe that the foreman of the jury, or forewoman, should be required to shoot the defendant on the courthouse yard. After the appeals are done. All of these euphemisms for killing a human with poison are false and hypocritical. "Execution by lethal injection". At such and such time the inmate "expired". Instead of saying that they dumped his dead body in a ditch they talk about "remains". When the State kills, every citizen of the state has blood on their hands. So everyone in the State of Missouri poisoned a human being and dumped his dead body in a ditch.

Posted by: mpb | May 22, 2009 3:06:21 PM

mpb,

Works for me, especially if you add Supremecy Clause's 1-2-3 dead provision.

Posted by: Soronel Haetir | May 22, 2009 3:19:53 PM

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