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March 29, 2014

"What’s the Best Way to Execute Someone?"

The title of this post is the headline of this lengthy new Slate commentary.  Here is an excerpt:

Without an expert in the room, states often rely on executioners who don’t really know what they’re doing.  As one anesthesiologist told me, “the executioners are fundamentally incompetent. They have neither the technical skill nor the cognitive ability to do this properly.”  Another added, “In medicine, the burden of proof is on the doctor to show that something is safe. We would never give a new drug to a patient until it’s been tested, approved by the FDA, etc.  With the death penalty, the burden of proof has been inverted. These compounds, which are clearly causing patients to suffer, are deemed safe until proven otherwise. Yet the department of corrections prevents the release of information pertaining to how the lethal injection is carried out, making it impossible for a lawyer to make a strong case that this method is cruel and unusual.”  Georgia is in fact working on a Lethal Injection Secrecy Act.

As our understanding of cruelty continues to evolve — let’s not forget that drawing and quartering was once an acceptable method of execution — future generations may wonder why lethal injection was performed so poorly and carelessly, and with so little oversight. Part of the problem is the terminology: Words like injection and cocktail and gurney give the illusion that this form of capital punishment is civil.  This allows, regrettably, for a softening of the perception of what is actually happening: Medications that were designed to heal have been repurposed to kill.

And it’s not just the wrong doses — it’s the wrong drugs.  A professor of anesthesiology at a large academic medical center said, “We have the drugs to do it in a way that doesn’t cause suffering.  I read the doses they were using and thought, ‘That’s not enough! Who is coming up with this? Whoever did certainly doesn’t do this for a living.’ You need two components for lethal injection: amnesia and analgesia. This ensures the person is not aware and not in pain. Drugs like potassium chloride and pancuronium (a paralytic) — the drugs approved by the Supreme Court — are unnecessary. When they euthanize a dog, they don't use potassium or a paralytic.  You don’t even need an anesthesiologist! Any physician could look up the proper dosing in a textbook.”

While I was researching this piece and discussing with friends the nuances of optimizing lethal injection, a number of them stopped me midsentence and asked, “Who cares?” Should it be our concern that a monster may have experienced profound discomfort in his or her final minutes?  Recounting precisely what happened to Dennis McGuire — who was convicted of the 1989 rape and murder of 22-year-old Joy Stewart, who was about 30 weeks pregnant at the time — led some to express the hope that he did suffer.  But regardless of your stance on the death penalty, the story of McGuire’s slow asphyxiation should lead you to wonder whether it violated our Constitution’s ban on cruel and unusual punishment....

A compelling case can be made that based on efficacy, diffusion of responsibility, and inexpensiveness, death by firing squad is a better option. (Or perhaps the guillotine.) Some organs would remain intact for donation, and although it might appear grisly, it’s quick, and it is the only method of execution for which we already train people. Interestingly, in states that have offered both shooting and hanging — which also fulfills many of the above criteria — inmates usually opt for the firing squad.  One could argue that if properly done, lethal injection would be more humane than either of these methods, but we can no longer expect that it will be properly done.

March 29, 2014 at 09:42 PM | Permalink

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Comments

"But regardless of your stance on the death penalty, the story of McGuire’s slow asphyxiation should lead you to wonder whether it violated our Constitution’s ban on cruel and unusual punishment...."

Since there is no evidence McGuire was not unconscious, I don't wonder.

I honestly don't care if he suffered or not.

Posted by: federalist | Mar 29, 2014 9:52:58 PM

hmm whatever kills them quickly, cleanly and cheaply would be my vote!

Posted by: rodsmith | Mar 29, 2014 10:39:23 PM

At least the article was unbiased and fairly presented the other side.

NOT.

Posted by: Bill Otis | Mar 29, 2014 11:11:57 PM

I would argue that anesthesiologists have no special insight in this area. Their entire focus is keeping a patient alive despite using agents that can very easily kill. It doesn't take any great skill to render someone dead with modern pharmaceuticals.

That being said I would continue to advocate for using inert gas asphyxiation, most likely a pure nitrogen mix. It has the benefit of the needed materials being cheap and plentiful, it poses no danger to the execution team and also doesn't require the preparation of any sort of IV access.

Posted by: Soronel Haetir | Mar 30, 2014 12:41:06 AM

Without question, the most efficient, painless, and 100 percent final method of execution remains the guillotine. Moreover, the executioner's holding up of the head to the crowd of onlookers sent as powerful amessage of deterrence as has ever existed.

Posted by: realist | Mar 30, 2014 1:17:35 AM

Federalist writes: "I honestly don't care if he suffered or not."

Fortunately, Federalist did not have a hand in drafting the Eighth Amendment.

Posted by: observer | Mar 30, 2014 1:20:03 AM

Observer, please point to that part of the Eighth Amendment that guarantees painless punishment.

Doug: Any reason why you're unwilling to point out how unbalanced this article is?

"A professor of anesthesiology at a large academic medical center..." Why no name? Does this doctor fear a backlash? Certainly none would come from the AMA.

Posted by: JF | Mar 30, 2014 9:35:45 AM

This is easy. The best way to execute someone is the guillotine.

1. It is quick
2. It is painless
3. There is very little risk of error (make sure it drops from high enough, is sharp enough, and is greased up to slide down easily).
4. When working properly it is guaranteed to work

Posted by: Matt | Mar 30, 2014 10:53:52 AM

I should read before I comment. I wasn't aware that was already proposed.

Posted by: Matt | Mar 30, 2014 10:56:49 AM

Matt,

Except that there can be significant risks to the execution team from blood (along with the admittedly small risk that the machine malfunctions and injures one of the executioners). And you don't get to choose whether the condemned has some disease or not.

Posted by: Soronel Haetir | Mar 30, 2014 11:01:10 AM

I think we're missing the forest for the crabgrass.

What this article is designed to do is take us down a side street in the death penalty debate. Abolitionists of course love side streets, because they distract us from the main question: Are there some crimes so vicious, grotesque and inhuman that nothing else approaches justice?

The great majority of our citizens say yes. The four largest countries in the world say yes (China, India, the USA and Indonesia). The Orient says yes, the subcontinent says yes, the Middle East says yes, the Caribbean says yes, most of Africa says yes, most of North America says yes.

A majority in favor does not necessarily resolve the issue, but looking at the stomach-churning details of some of these murders does. (Which is why abolitionists have uniformly refused to discuss or even acknowledge the description of a least one such crime I have noted two or three times recently).

Their "answer" is for some brickhead to post as "Madame DeFarge," or to call anyone disagreeing a Nazi (more recently a "kapo"), or, among the more sophisticated, to write articles like this one in Slate.

Nice try. No dice. As Chief Justice Roberts wrote in Baze, the DP is the law of the land, and, while it's implementation can seldom be guaranteed to be pain-free (death seldom is), we are going to do it, and we are doing it, abolitionist and pro-McVeigh obstructionism notwithstanding.

Posted by: Bill Otis | Mar 30, 2014 11:44:06 AM

What's the Best Way to Execute Someone?

Have them attend a Bill Otis Lecture!

Wait, I forgot about cruel and unusual.

Posted by: albeed | Mar 30, 2014 2:02:08 PM

albeed --

If it's cruel and unusual you want, try a Joe Biden speech.

Well, cruel anyway.

Posted by: Bill Otis | Mar 30, 2014 3:41:04 PM

I am interested in what the courts are going to do with the secrecy laws. I believe the first one to hear a challenge to it would be the Georgia Supreme Court in Owens vs Hill. Texas and Oklahoma are on deck.

If the compounding pharmacies are going to eventually stop selling to the states, I am curious what road the Legislatures would take.

Are the people ready to go back to the electric chair, firing squad or gas chamber? Of course, the antis are hoping the answer is no and yes to the end of the death penalty.

Posted by: DaveP | Mar 30, 2014 6:20:46 PM

Bill Otis,

Quit whining! You seem to lack a compassion bone in your body. It is no accident that Jews are, by and large, in the vanguard of those seeking criminal justice reform and fighting the rubes, idiots, and rascist trash that you seek to enable. Jews know all too well what can happen when elites refuse to stand up to totalitarian horrors. In our country, those horrors take the form of a brutal criminal justice system that leads the world in imprisonment. We are the only country among those anyone would want to consider a peer that still executes human beings. If your wife's family suffered at the hands of the Nazis, as you seem to imply, that was a terrible thing. But you should be the last person to use your elite education and connections to enable the barbarians. I'm really sorry if your feelings are hurt. But there are probably a million people imprisoned in this country who don't need to be there, because of the kind of thinking you promote.

Posted by: Liberty Lawyer | Mar 30, 2014 6:55:52 PM

I have been ranting on this blog in favor of the firing squad for months. But, think about having the Governor being the lead shooter on the squad. He also has pardon and clemency power. But, that should end sometime before the first shot is fired. If you were the one to be killed by the state would you choose the firing squad where you are standing up like a man, with or without blindfold, and take some quick bullets, or be tied to a gurney and then have needles stuck in your arms while they inject poison? I would chose the firing squad. Thank you Governor for I have sinned, Fire when ready.

Posted by: Liberty1stl | Mar 30, 2014 9:04:42 PM

My view tends to be this: If we think pain should be a component, we should discuss it openly (I don't think it should be permissible, but it's a debate that's at least reasonable; it's unreasonable to claim it shouldn't be a factor but be indifferent about reducing it or trying to prevent the discovery of more information in this area). If we don't think pain is an acceptable component of the death penalty and we think the goal is to do it efficiently and painlessly (i.e., death is the only goal), then it makes sense to try and reduce pain to the point of no pain. If done right, I can't see any need for a paralytic, for example. The problem here is I don't think there are any neutral experts. There are those who want no death penalties and there are those who want to do them as cheaply as possible while still passing public and constitutional scrutiny. People who say "let's do this right if we're going to do it" are few and far between.

Posted by: Erik M | Mar 30, 2014 9:40:25 PM

"If it's cruel and unusual you want, try a Joe Biden speech.

Well, cruel anyway."

I agree, it is cruel to force someone to commit suicide, as I certainly would if I HAD to listen to Biden or that other guy.

Posted by: albeed | Mar 30, 2014 10:18:24 PM

Jews are smart. The stupid ones were all killed. They still make mistakes. Example, support for the Democratic Party. Totally screwed by Obama. Obama will allow Iran to deliver a nuclear weapon on the head of Israel. He is a total, irremediable Chamberlain, and tyrant appeaser.

Also screwed, but royally, worse than the Jews, were the females, the young (Obamacare to support the care of chain smoking elderly parasites), the black (50% unemployment), the Latinos (more deportation than ever in history, kowtowing to Hugo Chavez). Only the wealthy got their money's worth in the performance of the stock market in exchange for their donations to the campaign.

Posted by: Supremacy Claus | Mar 31, 2014 12:17:27 AM

To all abolitionists: Stop making personal remarks. You look cheap and desperate for a fact, when you do. I know you can do better, especially the lawyers here.

Posted by: Supremacy Claus | Mar 31, 2014 12:19:10 AM

Liberty Lawyer --

"Quit whining!"

When people insist on the "right" to make guttersnipe comments, they are going to continue to hear about it with or without your approval. If you dislike my reaction, perhaps you should join in discouraging the kinds of remarks that provoke it, no?

"You seem to lack a compassion bone in your body.

I have plenty of compassion for crime victims and for people who, through immaturity or misinformation, get into taking damaging drugs. If you have a compassionate bone in your body for either category, you have kept it well hidden.

Posted by: Bill Otis | Mar 31, 2014 7:40:32 AM

In case anyone cares, here is the wikipedia summary of 2013 executions by country worldwide:

http://en.wikipedia.org/wiki/Capital_punishment_by_country

From a cursory glance it appears Europe and Latin America are the bastions of abolition though I've read somewhere the populations of a some countries most notably Mexico are actually in favor capital punishment.

It does appear that in most countries, Capital Punishment is exceedingly rare (1 in India, 1 in Bangladesh, 0 in Indonesia and Nigeria all of which are very populous countries).

Posted by: Matt Faler | Mar 31, 2014 8:29:10 AM

Another “innocent” one, Peter et al.
Here’s the facts on #7 of your 19 “innocent” gits:

in Florida:
Pedro Medina
“… he was found in the victim's car with a knife that could have killed her." -- 59 F.3d 1095

• Dorothy James, the victim, lived in an apartment next to Medina’s half-sister. James befriended Medina.
• James was found dead in her apartment on April 4,1982. She had been gagged, stabbed multiple times, and left to die. –-690 So. 2d 1241

• Medina tried to sell the victim's car in Tampa to Michael White. White testified against Medina at trial that, instead of giving him the car,
Medina stabbed White, took his money, and drove away.
• The state presented White's testimony at the trial to prove that Medina was in possession of the murder victim's car and a knife
shortly after the murder.
• the state presented another witness, a FHP Trooper, who testified that on the day after the murder, he arrested Medina in the murder victim's car
in a rest area on 1-75 near Lake City, Florida and that he found a knife in the car which was introduced in evidence at the trial. --573 So. 2d 293

• Medina [later] admitted that he was in James’ apartment when James was dead. Medina admitted that a hat found by police detectives
on a bed near James’ body was his hat.
• Medina’s explanation of how he came to be in James’ vehicle was not believed by the Detectives …
• Medina admitted during his trial testimony that the statement given to the Orange County detectives was a lie. –690 So. 2d 1241
-----

Counter arguments?
The record supports this conclusion. Medina talked freely and without hesitation about his activities. For a period of approximately thirty to forty-five minutes,
he discussed his activities with Nazarchuk. He told Nazarchuk that
• he was not in James' car but was thrown into the car by the Florida Highway Patrol ,
• that he had not been in Orlando since December of 1981, that he had hitchhiked from Tampa,
• that he was given a ride by two white people who took him to the Lake City vicinity, and that he fell asleep and the white people were gone when he awoke.

• On the fourth day of trial, against advice of counsel, Medina testified on his own behalf. He admitted that he had been at James' home on the night she was killed
but denied any involvement in her death. He testified coherently about his activities …
• He stated that he thought James had been killed by three Cubans who were looking for him. Medina also testified coherently on his own behalf during
the penalty phase of his trial.
• “Medina alleges that the statement given to Nazarchuk on April 9, 1982, should not have been admitted at trial because Nazarchuk violated Medina's constitutional right
to remain silent” -- 59 F.3d 1095

Talk about complaints being post-conviction & irrelevant:
| ACLU | “A crown of foot-high flames shot from the headpiece during the execution, … Medina's chest continued to heave until the flames stopped and death came.” – Angel Diaz, 12/4/06
| Amnesty International |“According to her daughter's affidavit, Mrs. James liked Medina and tried to help him adjust to life in the United States. …
Medina's case prompted appeals for clemency from Pope John Paul II and a church in New Jersey” -- William Kreuter, 2000

Posted by: Adamakis | Mar 31, 2014 9:08:47 AM

Pedro Medina: Adamakis, you so want him to be guilty and eligible for that execution, but ....

"Pedro Medina came to the United States in the Mariel boatlift of 1980, when the Castro administration sent to the US thousands of Cubans, including many criminals and mentally ill people, whom the Cuban government found undesirable. Medina was then a teenager with a lengthy history of psychiatric disorders and disastrous scholastic performance who had just been released from a Cuban mental hospital. The prosecution only obtained such a result [guilty & death penalty] because of Medina's mentally troubled state. The fact is that there was very little physical evidence to link him to the crime scene. His fingerprints were not found in the victim's apartment, and there was no blood in the car in which he allegedly left the scene. Nor was there blood on the knife that the prosecution touted as the murder weapon. Indeed, there is no question that the state's case against Medina was weak until he bolstered it with his own behavior during trial.

Medina displayed wildly unpredictable mood swings during his pretrial confinement, and was once placed under a suicide watch. In court, Medina maintained a steady stream of distracting outbursts and expressed frequent confusion at the proceedings. On the last day of trial, he disregarded counsel's advice and took the stand himself. In spite of this behavior, Medina's lawyer never presented his client's history of mental illness as a mitigating factor during sentencing. Subsequent evaluations by mental health professionals revealed paranoid schizophrenia, psychosis and depression, leading one doctor to observe, "It appears that though this individual had a factual understanding of the charges against him, he lacked a rational ability to aid counsel in his defense.... There is a substantial probability that this individual was incompetent to stand trial at the time his trial was held." For purely procedural reasons, the matter was never considered on appeal.

On February 10, 1997, the Florida Supreme Court ruled 6-1 that Medina should receive an evidentiary hearing to decide his sanity. However, a minority of three of the judges also wanted for the hearing to include considering claims that the evidence pointed to another killer.

Justice Harry Anstead said the court should have noted Medina's long history of mental illness and the fact that the case against him was based on circumstantial evidence; the judge pointed out that daughters of the victim testified that they do not believe that Medina killed their mother. The justice added that the "most troubling" aspect of Medina's appeal was the claim that the state failed to disclose evidence suggesting that someone else killed Dorothy James.

On March 24, 1997, the Florida court system quickly refused to consider new evidence. The original trial jury convicted Medina of stabbing James, his former neighbor, after the jury heard, among other things, that he was found in North Florida with her Cadillac a few days later. A knife believed to be the murder weapon was found in the car.

At this proceeding, Medina's lawyers said they never knew that a knife was taken from the victim's home and tested by a medical examiner. They claim that knife, which had no links to Medina, could have been the murder weapon.

One of Dorothy James' daughters, Lindi James, was often outspoken in opposition to the state's wishes. She said, "There was never to my satisfaction an investigation done that supported executing someone." She also said, "I really feel strongly against the execution of Medina, but at this point I'm just really tired of it all being brought back up over and over and over and over again." Lindi James always believed that too many questions were left unanswered about her mother's murder, and she gave Medina's lawyers an affidavit to that effect.

"I have never believed Pedro killed my mother," Ms. James said in the affidavit. According to her daughter's affidavit, Mrs. James liked Medina and tried to help him adjust to life in the United States.

"I do not want my mother's memory to be used as an excuse for executing Pedro Medina," Ms. James said. In addition to the ignored wishes of the victim's family, Medina's case prompted appeals for clemency from Pope John Paul II and a church in New Jersey; for a while after arriving from Cuba, Medina lived in Cape May, N.J., where a member of the First Presbyterian Church sponsored him."

Posted by: peter | Mar 31, 2014 11:56:34 AM

Bill Otis:
If anyone is going down a side street, it's you. The linked author's article is driving at a discussion about the method by which prisoners are executed. Your comment tries to create a detour into a discussion about whether execution is proper, period.

Posted by: KL | Mar 31, 2014 12:20:25 PM

KL --

It's all true. My comment is indeed about whether the death penalty is proper, that being the elephant in the room that this obsession with method is hoping to get us to forget about.

Posted by: Bill Otis | Mar 31, 2014 6:49:13 PM

If you are going to execute someone, PROPER "death by injection" is, to my mind, the best to date (though I can think of some better ones). The anesthesiologist was pointing out that what little is allowed to leak out shows dosages that are not very good, either at causing death or at preventing pain. If so, then something is very wrong, even I could go to a library and come up with a combination of pain blockers and muscle relaxants.

Firing squads would be better IF there was a certainty of an immediately fatal brain shot. Which there is not, which at military executions using this method someone was deputed to get within arm's length and make a "quietus" shot if (often) needed.

Guillotine? No thanks. Like strangulation (or the "instant death" shot/knife through the heart) the brain takes a while to actually run out of oxygen and die. There are accounts from the French Revolution aftermath of severed heads attempting to speak for two minutes or more...

Hanging? Even properly done (spinal column severed rather than strangulation), see guillotine.

I have tried to put myself in the position of someone being executed. I would prefer being rendered unconscious before any of the above methods. Failing that, something that would immediately crush (falling weight) or otherwise destroy the brain (vibration? electrocution? still at mercy of quality of executioner) in a fraction of a second.

Posted by: John A | Mar 31, 2014 7:21:58 PM

John A ,

Like I said, I don't believe that anesthesiologists have any special insight. Their entire focus is the exact opposite of the goal during executions. Their studies focus on things like the minimum possible dose that will render the patient unconscious. The doses that states use for executions on the other hand are several times the fatal dosage level.

I guess one thing I would point out, we've had how many lethal injection executions now? Several hundred anyway and I would guess probably more like five hundred. If the lethal injection protocols didn't work you would think that there would have been an execution that failed to render the condemned dead. (Note I am not counting cases where there was a failure to start the IVs at all as that has nothing to do at all with choice of agent or dosing).

I would think the problems of blood exposure with crushing would be even greater than those of a guillotine.

Posted by: Soronel Haetir | Mar 31, 2014 8:44:28 PM

Peter:
? ? ?
Mental illness, and the victim's daughter's inkling as to who did it?

He admitted being in the room with Mrs. James's dead body!
His hat was found by the dead body.
He was found with a knife in the murder victim's car.
He lied about key details and conjured tails of two whites ..
.. three Cubans ..
.. and awaking in a strange place.

Why do you want so badly to believe the aliens did it?
I suppose consistent evidence and testimony with cross examination, sworn oaths, and a public trial
are inferior to your findings.

Posted by: adamakis | Mar 31, 2014 9:49:41 PM

In my lay & non medical opinion , I opine that the METHOD currently used is flawed .

Based on my experience in whole blood , double red cells , apheresis platelet/plasma donations (☺ not concurrently)) ; I opine that exsanguination is a painless and tidy method , which also allows organ and bone arrow donating if appropriate .

A sudden C2 extension fracture would be quick and allow organ donating .

What about an overdose of a good whiskey/whisky and diphenhydramine ?

A blunt impact to brain stem is quick and instant .

WHETHER to execute is an interesting Q.
The evil predator who raped and killed an older woman then raped and attempted to kill her age 6 year granddaughter in Summit County , Ohio deserved severe punishment ; but convicted then exonerated Clarence Elkins was not the predator .

What about isolating a convicted murderer to an extremely remote area ?

Why not PERMIT a condemned to commit suicide , if he/she chooses ?

BTW
I believe it is o.k. to disagree or strongly disagree with Bill Otis , but I fail to see the need or the wisdom to make personal attacks , even in retaliation by an individual who perceives an ad hominem attack from Bill.

I have observed in the past where Bill has made an erroneous assumption , but I believe we all have done so at one time or another .

At my older age , I have made several over the decades , but not until after age 25 when I was flawless and incapable or error ☺

DJB , Nemo Me Impune Lacessit

Posted by: Docile Jim Brady - Columbus OH 43209 | Apr 2, 2014 6:45:27 AM

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