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February 1, 2014

"Botched executions undermine death penalty"

The title of this post is the headline of this recent op-ed in the Providence Journal authored by Austin Sarat.  Here are excerpts:

This month’s execution of Dennis McGuire made headlines, and rightly so. The start of his execution was followed by a sudden snort and more than 10 minutes of irregular breathing and gasping.  It took Ohio almost 25 minutes to end McGuire’s life.  Newspapers labeled McGuire’s a “slow execution” and a “horrific death.”  His lawyer said, “The people of the state of Ohio should be appalled at what was done here today in their names.”  McGuire, a brutal killer, seemed to become, at least momentarily, an object of pity.

His execution occurred at a time when abolitionists have increasingly turned their attention away from the fate of the people like McGuire, whose guilt in the 1989 murder of pregnant 22-year-old Joy Stewart seems beyond doubt, to focus on those mistakenly and unjustly condemned to die.  Doing so, they have had considerable success in changing attitudes toward America’s death penalty.

In this climate, should we care about what happened to Dennis McQuire? ... Why not treat McGuire’s execution as a freak accident, rather than a symptom of a deeper problem in the death penalty system?

Since the beginning of the republic, we have committed ourselves to punishing without cruelty, to restraining the hand of vengeance no matter how horrible the crimes that give rise to punishment.  On all sides of the death-penalty debate people agree that no method of execution should be used if it involves, as the Supreme Court’s 1947 Francis v. Resweber decision put it, “torture or lingering death” or “something more than the mere extinguishment of life.”

From hanging to electrocution, from electrocution to lethal gas, from electricity and gas to lethal injection, over the course of last century America moved from one technology to another in the hope of vindicating the promise of the Francis decision.... Yet McGuire’s joined a long line of botched executions that have marked America’s use of the death penalty from its beginnings and continued unabated over the last century and more.

Of approximately 9,000 capital sentences carried out in the United States from 1890 to 2010, we know of 276 of them (just under 3 percent) that were botched — 104 of them occurring after 1980.  We might assume that botched executions were more frequent when death came at the end of a rope or in an electric chair or gas chamber, but the percentage of botched executions is higher today, in the era of lethal injection (more than 7 percent), than it was when hanging, electrocution or gas were the predominant modes of putting people to death.

Botched lethal injection procedures are less obviously gruesome than a decapitation during a hanging or someone catching on fire in the electric chair, but they are no less troubling....

It is unacceptable for 3 percent of America’s executions to impose “something more than the mere extinguishment of life.” We should learn from our own history that there is no technological guarantee that we can kill humanely.

February 1, 2014 at 07:38 AM | Permalink

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Prof. Sarat. Lawyer. Yale Law. Dismissed.

Posted by: Supremacy Claus | Feb 1, 2014 9:21:41 AM

This clown doesn't even know whether McGuire was conscious.

Posted by: federalist | Feb 1, 2014 11:28:14 AM

"Amy Borror, a spokeswoman for the public defender's office, said all accounts from execution eyewitnesses -- which did not include Lowe -- indicate McGuire was unconscious at the time he struggled to breathe." -- Associated Press

Newspapers labeling this execution horrific are more a comment on the state of journalism than on the state of the death penalty.

Posted by: Kent Scheidegger | Feb 1, 2014 11:30:59 AM

In addition to what Kent has correctly noted, I must question this statement: "Of approximately 9,000 capital sentences carried out in the United States from 1890 to 2010, we know of 276 of them (just under 3 percent) that were botched — 104 of them occurring after 1980."

I'd love to know where the figure of 104 "botched" executions comes from, and how and who determines what "botched" means.

I follow the DP pretty closely, and until I see some comprehensive and credible documentation of that claim, I am very, very skeptical of it.

It's not like abolitionists never lie. They lie all the time. The lied about Roger Keith Coleman for ten full years.

Posted by: Bill Otis | Feb 1, 2014 12:06:05 PM

One person who actually witnessed it:

http://www.theguardian.com/commentisfree/2014/jan/22/ohio-mcguire-execution-untested-lethal-injection-inhumane

"Newspapers" don't label this "horrific" as such. Certain ones have opinion pages that do that or cite people who say it is. Some included comments by KS in the coverage as well. Doug Berman was also quoted. I have read articles on this and the other execution commented here recently and both sides were given their say in the coverage. It was the typical he said/she said coverage. Op-ed pages will depend on the nature of the publication. As was the case since "Jeffersonian" papers and "Federalist" papers.

Anyway, the lead comment has certain biases that will be noted by some, just like those on the other side has biases. But, unlike anyone else here, to my knowledge, he was there.

Posted by: Joe | Feb 1, 2014 12:11:56 PM

As to "botched," I listened to the oral argument in Baze v. Rees recently. There was a reference there to botched executions. The government didn't deny that some executions were botched in some fashion. It noted though that Kentucky's procedures dealt with the issue and were not unconstitutional.

There have been studies on executions. The fact that some executions were botched in some fashion is not really a novel thing. Three percent is not really a gigantic number. There were various reports of problems finding veins (the prisoners often being drug addicts or in some other fashion of dubious health, making it much harder their usual), electrocutions going wrong etc. The data is also cited to be from 1890. The idea that 1 out of 33 executions (o even 1 out of 14, probably) were somehow botched does not really seem too hard to believe. A supporter of the death penalty probably could find that okay, especially since in some cases they would challenge how "botched" it was. The op-ed cites a book on the subject the author wrote, so Bill Otis can read it and look at that data.

As to "lying," that is about as inexact as "botched." A case cited where "abolitionists" said there was a chance someone was innocent to me is not "lying" just because they were wrong any more than various cases when it turned out someone was innocent (down to the Central Park Five) meant the prosecutors were "lying" because they had a strong opinion they were guilty.

Posted by: Joe | Feb 1, 2014 12:29:42 PM

Joe, with respect to Coleman, the ones in the knowl knew he was guilty as sin. As for the "Central Park Five," it certainly doesn't strain credulity to wonder what they were doing that night . . . .

There is nothing to suggest that McGuire was not unconscious when he moved around. Nothing--so how do we count that as a "botched" execution? Sounds like dishonesty to me.

Posted by: federalist | Feb 1, 2014 2:01:27 PM

Joe --

You can't seriously think that trouble finding a vein makes the execution "botched," can you?

I occasionally get blood work done, and once in a while the nurse has trouble finding a vein. To say that this makes the blood draw "botched" is so off the wall as to render such a claim preposterous.

"As to 'lying,' that is about as inexact as 'botched.' A case cited where 'abolitionists' said there was a chance someone was innocent to me is not 'lying' just because they were wrong ..."

No, the word "lying" is not inexact. It has a specific meaning: Intentionally asserting as a fact something that is false.

The abolitionists said a great deal more than that "there was a chance" Coleman was innocent. They said point blank that HE WAS IN FACT INNOCENT, and -- just to polish things off -- that dishonest prosecutors and a corrupt judge hustled this "innocent" man into the death chamber for their own sinister reasons.

That is lying, plain and simple.

Posted by: Bill Otis | Feb 1, 2014 2:40:30 PM

Bill Otis, O.K. Let's concede that on occasion some D/P opponents lie. Does that make up for the prosecutors who lie? E.g. Case of Michael Morton?

Posted by: anonymous | Feb 1, 2014 3:14:27 PM

Federalist, what do you say about prosecutors who lie?

Posted by: anonymous | Feb 1, 2014 3:15:46 PM

anonymous --

"Bill Otis, O.K. Let's concede that on occasion some D/P opponents lie."

Glad to hear it. Of course if they had a good argument, the truth would do just fine.

"Does that make up for the prosecutors who lie? E.g. Case of Michael Morton?"

No, it most certainly does not make up for prosecutors who lie. It also does not make up for defense lawyers who conspire to murder prosecution witnesses, http://nymag.com/news/features/paul-bergrin-2011-6/index2.html

Posted by: Bill Otis | Feb 1, 2014 3:23:58 PM

anonymous, you must mistake me for some statist guy--prosecutors who knowingly obtain BS convictions belong in prison for a very long time.

I do recall a certain prosecutor who tried to railroad some "privileged" college students into a 30 year rape beef. I don't recall a whole lot of liberals all that outraged that the prosecutor was jailed for only a day. I think 20 years would have been more appropriate. I also don't recall a whole lot of liberal outrage that a lot of people wanted them convicted for reasons other than whether they did it or not.

Does that answer your question? I am not a statist. I don't believe that there's a government discount on dishonesty.

Posted by: federalist | Feb 1, 2014 9:02:12 PM

As to the Central Park Five, they or some of them, were involved in various instances of harassment of park goers and one or more were likely involved in some crime connected to that. A repeat rapist was found to have done the horrible crime at issue here though, the investigation majorly botched as to the teens. The DA recommended their sentences to be vacated upon the office's own study of the matter.

I don't know what "those in the know" means specifically. A reference was made to "abolitionists" there "lying." It was argued that there was some reasonable doubt. A person can be "guilty as sin" as in doing it and there still might be some reasonable doubt or enough that some can say that even if others don't think so. And, "abolitionists" who said there could be evidence there very well might have been fatuous in some fashion. The DNA showing him doing it however is not the same as them "lying." The broad usage of "abolitionists" is particularly an issue here. If a few specific names were cited, it might have been a closer case.

Just trying to find a vein itself is not "botched," but specific cases of that where there was major difficulty not of the "sort of tricky taking of blood" scenario were cited in various cases included during the Baze case. Again, the author there wrote a book and you can look at it. Likewise, over the years, since 1890, there were various reports and studies done where there were botched executions. 3-7% is a notable number but it is pretty low to be that dubious. Seems better to stick with challenging the case being "botched" with the rest just a matter of execution being a dirty business that will have problems now and then. Not that I'm trying to offer any advice to the other side or anything.

Posted by: Joe | Feb 2, 2014 11:03:25 AM

Typical Sarat.

McGuire didn't feel a thing.

"State prison records released Monday say McGuire told guards that (McGuire's counsel, Robert) Lowe counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display." (1)

"Amy Borror, a spokeswoman for the public defender's office, said all accounts from execution eyewitnesses - which did not include Lowe - indicate McGuire was unconscious at the time he struggled to breathe." (1)

"Medical experts would not comment on Mr. McGuire’s execution or speculate about what he experienced. They agreed that used for surgery, the two drugs would not cause pain. (2).

“By virtue of what they do, they cause unconsciousness, and they inhibit pain,” said Dr. Howard Nearman, professor of anesthesiology at Case Western Reserve University (2).

As there was no surgery, both drugs were given at overdose levels and both drugs would enhance the effects of the other, of course there was no pain.

Do folks wheeze, snore, move or cough etc. while sleeping? Do those with opiate overdoses wheeze, snore, move, cough, have spasms, etc.? Of course, which is all that happened with McGuire, as some predicted.

The Associate Press witness:

"McGuire was still for almost five minutes, then emitted a loud snort, as if snoring, and continued to make that sound over the next several minutes. He also soundlessly opened and shut his mouth several times as his stomach rose and fell." "A coughing sound was Dennis McGuire’s last apparent movement, at 10:43 a.m. He was pronounced dead 10 minutes later." (3)

No evidence of consciousness or pain.

more at

The (imagined) Horror of Dennis McGuire's Execution
http://prodpinnc.blogspot.com/2014/01/the-imagined-horror-of-dennis-mcguires.html


Posted by: Dudley Sharp | Feb 2, 2014 2:00:49 PM

"We should learn from our own history that there is no technological guarantee that we can kill humanely."

Except that there is, and we know precisely how to do it. Bullet to head would kill instantly. We don't do it, however, because it makes people feel icky. Lethal injection is simply a way to sanitize the process...it's much more comforting to see someone go asleep and not wake up than to fall like a sack of potatoes with blood spurting.

Then there's a nitrogen or helium gas chamber...which, as I've said before, have been used in suicide bags for decades. We know this would cause a painless death. Of course, doing this would be expensive, and would require construction of a new chamber...which is why states prefer not to do it. (Though, oddly, they don't seem to have a problem with spending millions of dolllars litigating every change to lethal injection procedures.)

The problem isn't that there is no way to humanely kill someone. The problem is that our elected officials lack the willpower to do it.

Posted by: Res ipsa | Feb 3, 2014 11:08:16 AM

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