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April 26, 2012

Defense lawyer in Arizona troubled by shaking of condemned during one-drug execution

Advocates for reforming lethal injection protocols have pushed for states to switch from three-drug approaches to one-drug protocols to reduce the prospect of a condemned inmate feeling pain during the execution process.  But this new AP story following an execution in Arizona last night, which is headlined "Lawyer concerned by inmate's shaking at execution," suggests a switch to a one-drug protocol does not eliminate all concerns. Here are the basics:

The attorney for an Arizona death-row inmate executed Wednesday said he was "very disturbed" after seeing his client shake for several seconds upon receiving his lethal injection, and he wants to find out if the man felt any unnecessary pain.

Thomas Arnold Kemp, 63, was executed at the state prison in Florence for killing a Tucson college student after robbing him of $200 in July 1992.... As the one-drug execution began, Kemp's eyes closed and his body visibly shook for several seconds before he went quiet and appeared to fall asleep with a few deep breaths.  His time of death was 10:08 a.m.

[Kemp's lawyer Tim] Gabrielsen later told The Associated Press he was concerned about his client's shaking and was considering what action could be taken to determine if Kemp experienced pain, including an autopsy by an independent pathologist. "It was unmistakable," said Gabrielsen, who has witnessed one other execution. "He was shaking very violently. We're very disturbed by that."

In the past nine Arizona executions attended by the AP since 2007, no other inmates shook as they were given a lethal injection.  State Department of Corrections spokesman Bill Lamoreaux said Kemp was offered a mild sedative before the execution but turned it down. "Also, the air conditioner was on and he expressed he was a little chilly," Lamoreaux said in an email to the AP.  "The air conditioner was turned off, and (Corrections Director Charles Ryan) personally directed the inmate be covered with a couple of blankets."...

Kemp was executed using one drug, pentobarbital.  Most states use a three-drug process and "the second drug would mask any movement or pain," said Richard Deiter, executive director of the Death Penalty Information Center in Washington, D.C. Deiter said it's hard to know if Kemp "had a strong adverse reaction" to the pentobarbital. "Sometimes it depends on the individual," he said. "Maybe he had an unknown (medical) problem."

Jonathan Groner, an Ohio State University surgeon who has studied lethal injection extensively, said high doses of pentobarbital are associated with seizures, and that may have caused Kemp's shaking. "The problem is the people that give it are not physicians. They try to push it as fast as possible," Groner said. "It's nothing anyone would do in a hospital or medical center. It's not a very good way to kill people."...

Arizona executed Robert Henry Moormann on Feb. 29 and Robert Charles Towery on March 8. Another inmate, Samuel Villegas Lopez, is scheduled to be executed May 16 for the brutal rape and murder of a Phoenix woman. Three other inmates who are near the end of their appeals also could be put to death this year, putting the state on pace to execute seven men in 2012. Arizona established its death penalty in 1910. Since then, the most inmates Arizona has executed in a given year was seven in 1999.

April 26, 2012 at 10:36 AM | Permalink

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To give a few more details (from C&C) on Mr. Nicey who got executed:

Kemp, an ex-con, and a former prisonmate who had escaped from an honor farm in California, seized 25-year-old college student Hector Juarez, who was out getting a late-night snack. The men made Juarez withdraw money from an ATM, stripped him naked, then shot him twice in the head and dumped his body near the Silverbell Mine. Kemp and his co-conspirator then carjacked a couple and forced them to drive to Colorado, where Kemp sexually assaulted the man. The couple was able to escape and later contact police. At his sentencing, Kemp told the court that Juarez was "beneath my contempt" because he was not an American citizen, and, "If more of them wound up dead, the rest of them would soon learn to stay in Mexico, where they belong." His last words were, "I regret nothing."

The idea that we should worry about the defense lawyer's worrying about Kemp shaking as he was executed is preposterous. Death is often accompanied by pain. Time to grow up.

Posted by: Bill Otis | Apr 26, 2012 12:06:45 PM

The adult thing to do is to remember that the Bill of Rights don't disappear because really bad people are sometimes involved. If a defense attorney gave a sob story to change the rules, many would note it with a grain of salt. Luckily, the article doesn't just provide input from a defense attorney, our system having various people playing different roles, who we then balance in various respects.

Policy makers and judges have to determine how best to kill people if they wish to kill people. Death even of really bad people done is a certain fashion, mostly because the people still alive think it is beneath them to do otherwise. We don't torture, e.g., as much for ourselves or more so than because we love the potential targets. Even if they are bad people who say bad things.

Bill Otis naturally has a certain p.o.v. given his profession and overall sympathies. Our system thankfully respectfully takes that point of view and balances with others.

Posted by: Joe | Apr 26, 2012 12:44:35 PM

Bill,

When is it the state's right to 'keep score' on depravity, and - as what the inmate did was worse - do whatever in response?

That says a lot about Bill Otis.

Posted by: anon | Apr 26, 2012 1:04:25 PM

Joe --

The Bill of Rights does not and could not provide the right to a painless execution. There is not much of a suggestion, much less a finding, that the Baze standard was not met in this case.

My point of view is that adults accept the inevitability of pain, particularly at the point of death. That's how it works. There is also pain -- probably a good deal more of it -- in being a prisoner for life with no possibility of parole.

There is just a limit on how much normal people are going to worry about momentary pain experienced by a person like Kemp while undergoing a legal punishment with a strong historical pedigree.

Posted by: Bill Otis | Apr 26, 2012 1:05:00 PM

anon --

"When is it the state's right to 'keep score' on depravity, and - as what the inmate did was worse - do whatever in response?

Kindly quote me on saying the state can do "whatever" in response. Also, read Baze.

"That says a lot about Bill Otis."

Were you under the impression that I care about what anonymous posters on an all-comers Internet site think of me?

Posted by: Bill Otis | Apr 26, 2012 1:14:40 PM

It seems that Bill is acknowledging that he doesn't really know if the one-drug protocol is pain-free or not (and, therefore neither does he know the extent of the possible pain). And if it is not pain-free, we should not be concerned about that.

Perhaps Mr. Scheidegger would like to come to Mr. Otis's assistance in clarifying that matter as he advocates for the one-drug protocol?

Kent?

Posted by: Scott | Apr 26, 2012 1:28:12 PM

Scott --

Thanks ever so much for guessing about what I "acknowledge," but I think I'll speak for myself if that's OK with you.

I am saying nothing about the choice between one and three drugs. Lethal injection was chosen ab initio to try to allay some of the concerns of DP skeptics, but, as we have abundantly seem, it's no use. The skeptics are determined to remain skeptical regardless of the method of execution. My points are (1) that shaking is not a violation of the Baze standard, (2) that Baze allows some degree of pain in the execution, and (3) that death very frequently involves pain, a fact adults understand and come to terms with.

Also, just to be clear, abolitionists wouldn't give a hoot if an execution were accomplished by singing the condemned murderer a lullaby. All this fretting about speculative pain is just a diversion.

Posted by: Bill Otis | Apr 26, 2012 1:45:26 PM

Guys, we need to remember the burden of proof. That there was shaking does not mean that there was pain. The stuff puts you to sleep, and a bit of shaking doesn't seem to be a big deal. Baze states that the Constitution does not demand a pain free execution. Why don't we start from there, rather than meaningless observations such as, "Policy makers and judges have to determine how best to kill people if they wish to kill people." That sentence has the appearance of "adult in the room" authority, but when you look at it, it is just rhetorical throat-clearing. Our system doesn't really contemplate judges wishing to kill people, and while judges/policymakers create a bit of a dialectic on procedures, judges don't really determine how best to kill people. Finally, the statement has a water is wet feel. Yeah, no kidding, procedures have to be in place to "kill people."

Posted by: federalist | Apr 26, 2012 1:47:08 PM

Kent?

You were saying - in your brief?

Posted by: Scott | Apr 26, 2012 2:08:54 PM

The Bill of Rights does not and could not provide the right to a painless execution. There is not much of a suggestion, much less a finding, that the Baze standard was not met in this case.

Non-responsive. I didn't say that it DID so require. I said that it requires certain things, we weigh various voices to determine if it does & we should not be clouded by any side in a way such as reminding people (as if they need it) that people who are executed tend to be pretty bad people.

My point of view is that adults accept the inevitability of pain, particularly at the point of death. That's how it works. There is also pain -- probably a good deal more of it -- in being a prisoner for life with no possibility of parole.

The fact that pain results and that bad people are involved again doesn't change the bottom line. It depends what sort of pain, even when really bad people are involved. So, other than smoke to remind that people executed tend to be really bad people, what exactly is the point again?

There is just a limit on how much normal people are going to worry about momentary pain experienced by a person like Kemp while undergoing a legal punishment with a strong historical pedigree.

There is a "strong historical pedigree" of "normal people" (including people who don't agree with you) worrying about the death penalty, which is partially why there has been a continual alteration of the means used, partially to be the most painless possible. ("possible")

As to the "diversion" part, again, when people are promoting an ideal (whatever it might be, let's say pro-life people who want no abortions ever, even for rape victims), they care about degrees. In fact, even those FOR the death penalty have some concern about the means. Some, e.g., think there is some honor involved even for them, and would not want the death to be dishonorable.

As to federalist, "they" covers the policy makers. "They" decide to execute/kill people. Judges do have a special role in overseeing the system in place, making sure the procedures are followed correctly. Yes, this is pretty obvious. Such is my point really. Even if the people involved are murderers. And, when the procedures are breached, judges have a special role.

Posted by: Joe | Apr 26, 2012 4:55:48 PM

Finally, I didn't say the procedure here was botched. I have no real way of knowing. I just appreciate having such reports out there, from various sides, for the relevant individuals to get a sense of what is going on.

A pro or anti death penalty person and everyone in between would reasonably think the same thing and not want the fact the person killed is a very bad person to skewer them. Also, the fact very bad people are involved underline that certain people deciding need to be separate from the average person.

An alleged rapist might want a little girl to be cross-examined. An average person might not want her to have to do so face-to-face. We can talk about how disgusting the person is. But, the judge specifically is there, and hopefully the defense and prosecutor, to know that certain basic rules are in place.

This is water is wet stuff. Sometimes, the simple stuff trips us up.

Posted by: Joe | Apr 26, 2012 5:01:10 PM

Joe, personally, I'd be cool if we never had to remind people of what these murderers did to deserve the "big jab," but the anti-death penalty side loves to make its own maudlin appeals--"there is a life at stake" (talk about some faux gravity there) etc. etc. So we remind people of exactly why people like Mr. Kemp face the business end of the needle.

The drumbeat of the anti-DP's side is just godawful to listen to. When South Dakota was close to executing a brutal torture murderer, the pathetic bleating began--"people in the state should take time to reflect" blah blah blah blah. And why would that be? Is it really that big of a deal to execute a murderer? Don't people have more important things to do than sit and reflect about an execution? Or remember the killer Keller brouhaha? More nonsense. (I guess I missed the day in law school where they taught that appellate judges were supposed to help litigants perfect their appeals.)

So, Joe, please spare us the lectures about the constitution applying to really bad people. We know that.

Posted by: federalist | Apr 27, 2012 1:27:26 PM

I cited all sides in my brief against "sob stories," including defense attorneys, clouding our judgment.

Federalist is not really helping his case with yet another drumbeat against one side. At least, he isn't making it about "Democrats" who "love" murderers.

I'm not the one focusing on one side here.

Posted by: Joe | Apr 27, 2012 2:15:34 PM

Wow, Joe, guess that "Dems showing capital murderers some love" comment left a mark.

Joe, your post was a silly lecture with some rhetorical throat-clearing masquerading as erudition.

Posted by: federalist | Apr 27, 2012 4:38:24 PM

I'm not sure why reaffirming my point a second time is desirable to you, but so be it.

Posted by: Joe | Apr 28, 2012 10:31:01 AM

Because I am right, Joe. Go back and read some of the silly moral preening and on-display handwringing that passed as evidence of deep consideration. (My guess is that these Dems simply are worried about the electoral consequences of their votes.) Yeah, that was showing some love for capital murderers. (Note that there is a difference between the colloquial expression "showing love" and love--I suspect you know that also, but hey, why let the truth get in the way of some huffy condescension.) One of those dim bulbs actually was talking in something approaching rapture---oh gee, my grandkids will know what kind of society we will have. Give me a break. Whether or not society has a death penalty for certain kinds of murders is hardly an acid-test of the general goodness of society. That the killer of members of Jennifer Hudson's family, writ large, says more about this society than executing less than one hundred killers per year in a nation of 300 million. (By the way, Joe, what does it say about society when thousands of murders over the past few decades have been committed by those who committed murder and were convicted of it?)

Once again, please spare us the lecturing. It really is tiresome. Most of us get that the Bill of Rights is applicable (although most of us on the pro-DP side of the house think that the liberal courts have read far too much into the Bill of Rights). Most of us even get that an execution shouldn't be that painful. So we don't need throat-clearing harrumpfs like this: "Policy makers and judges have to determine how best to kill people if they wish to kill people." Talk about vapid.

Posted by: federalist | Apr 28, 2012 11:09:28 AM

As others have said the constitution does not say anything about "pain free deaths," and to be frank, even if they felt a little pain during their execution it's not such a big deal - Of course we need to keep our morals and no one should suffer for an extended period of time, especially during their death, but we also have to remember that most of these guys are there for a reason (I say most because you never know, maybe some are innocent, which btw is a disgusting thought, executing an innocent life, but that's a whole different debate).

I think the current system is fine, a couple seconds of shaking should in a way be expected, after all you are shutting down the body fairly quickly, convulsions are normal.

Also as per request your I'm a college student for anyone who wants to know.

Posted by: Jack | Jul 12, 2012 1:01:27 PM

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