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March 18, 2011

DPIC director assails our "thoroughly modern death penalty"

Richard Dieter, the executive director of the Death Penalty Information Center, has this notable commentary on a blog from The Hill publication.  The piece is headlined "A thoroughly modern death penalty," and here is how it starts:

On March 10, Ohio carried out an execution using a method that had never been tried before in the U.S. — a continuous dose of the barbiturate pentobarbital was administered until death occurred for Johnnie Baston.  Coincidentally, in an unrelated event, Ohio's electric chair was relegated to a museum, displayed along with artifacts from the Ku Klux Klan and a cage used to house mental patients.

Although the museum pieces were clearly meant to show the dark side of Ohio's discredited past, the newest lethal-injection method has been viewed as cutting-edge technology in the business of capital punishment. Ohio has execution dates scheduled right into 2012.

It is often hard to see the present with the same clarity that we apply to the past.  But it is likely that someday the idea of strapping people onto a table with deadly chemicals flowing through IV-tubes into their arms and watching them die will also be seen as barbaric.

Particular condemnation might be cast upon the practice of using untried methods on unwilling human subjects — an ethical breach made acceptable only because the recipients are already condemned to die.  Those who probe a little further might be shocked to find that the death row inmates were first kept in locked-down cells for 23 hours a day for 15 to 20 years before being led to the execution chambers.

Earlier this year, the smooth running of the death penalty was jolted by an announcement from the sole manufacturer of a key drug used by all death penalty states that it was ending production.  States scrambled to find sources of the drug, sodium thiopental, overseas or to find a substitute drug here in the U.S.  A dingy storefront housing a driving school in London proved to be a goldmine for several states desperate to keep executions on schedule.  In the back of the building was a tiny pharmaceutical distributor called Dream Pharma that willingly sent thiopental to the U.S. for executions.

Despite the fact that these drugs were never examined by the U.S. Food and Drug Administration (which constantly warns consumers about the dangers of counterfeit drugs from questionable sources), they were quickly used in executions in Georgia and Arizona. Great Britain was embarrassed and has taken steps to bar all future exports for a practice that they routinely condemn.  The FDA has been sued for its inaction in allowing the drug into the country.

But the experiments go on.  There are now four different methods of lethal injection being used in the U.S., even though there has yet to be a national review of what would be the most humane approach.  Some states like Ohio are trying single drugs, others like Texas are substituting pentobarbital as part of a three-drug regimen.  Since the inmates almost always die at the end of these routines, there is little medical evidence of what the inmate is experiencing.

UPDATE Writing in a similar vein, the New York Times on March 19 published this editorial headlined, "The Broken Machinery of Death."

March 18, 2011 at 01:54 PM | Permalink


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If we did not have a century's worth of experience with anesthetic agents the claims of experimentation might have a little more traction. But when we know from that long experience that the hard part is keeping someone alive the charge loses more than a little of its force. Maybe it takes a doctor to keep a close enough eye on a patient to ensure that they do in fact survive such exposure. The same is not the case for make sure that a lethal dose is administered.

As for the delay, the condemned could have cut that short at any time and the waiting would have been over without a great deal of further delay.

Posted by: Soronel Haetir | Mar 18, 2011 2:36:01 PM

I'm not sure there's anything particularly notable about this commentary--it's the same argument used every time a novel lethal injection method is adopted, regardless of the drugs used.

Soronel very aptly expressed the problem with comparing the use of anesthetics to experimentation. And here's the other problem: in light of our fairly extensive experience with anesthetics, seems to me that it should be incumbent upon Dieter to explain why our scientific knowledge is not valid in this instance, not upon states to show that their scientific knowledge is not invalid.

Though to be fair to Dieter, there has been some scientific evidence that the three-drug cocktail has a chance of severe pain...but that's because the barbituate isn't in a high enough dose to render the condemned fully unconscious. I guess in that sense Dieter has part of a leg to stand on for a use of pentobarbital in a three-drug cocktail method. But I'm not sure how he gets anywhere when the pentobarbital is the ONLY drug used...where the dose is guaranteed to be sufficient.

Posted by: Res ipsa | Mar 18, 2011 2:59:37 PM

Experience on death row suggests that killing people w/o problems isn't so easy & since various problems have to with the inmate, yes, in various cases a doctor could ease things along. There is a reason why doctors are involved in euthanasia in many cases. Curious, given the first comment, why, since it's so easy to kill people w/o problems. As to delay, putting aside mandatory appeals, why the choice should be dragging things out because of reasons repeatedly shown to be the result of state error and delay and the inmate just accepting such error and delay (in the process, waiving what often is grounds for reversal) is unclear on a "due process of law" level.

Posted by: Joe | Mar 18, 2011 3:34:19 PM

"DPIC director assails our 'thoroughly modern death penalty'."

As if he liked the old one.

Res ipsa has it right in his first sentence. Dieter is a broken record at this point.

It wouldn't matter to the ideologically-in-stone crowd WHAT chemicals are used. They would file a method-of-execution suit if the convict were put to death by singing him a lullaby.

All this litigation has zip to do with the method. What is has to do with is, as ever, delay.

Posted by: Bill Otis | Mar 18, 2011 5:02:18 PM

Much as you doth protest this penetrating insight into the mess that is the practice of the death penalty in the US, the unedifying sight of dp States scrabbling for untested and unlawful dregs of sodium thiopental from improper overseas sources, and then turning to a drug used by the veterinary services to end the lives of animals (against the wishes of the manufacturer) .... is a tragic reflection of the inability of the Supreme Court to properly perform its role in enforcing the law against cruel and unusual punishment in the US, and the paralysis of some politicians more concerned with votes than ethics and morality in their constituencies. As usual, Bill attempts to marginalize the message by pretending the author is lying or arguing by subterfuge or whatever. There are just so many ways to attack the death penalty, it is actually an embarrassment. The complete farce over lethal injection constituents is merely one. But the real tragedy is the number of lives taken or ruined by a system that has no semblance of justice in the world of the 21st Century. In an age when we can send satellites to Mercury, men to the moon, cure cancers, induce reproduction in test tubes, manufacture robots and nanotechnology, surely America can find a better way to ensure Justice is seen to be done in the eyes of its own and those the civilized world. Professor Jim Liebman speaking on modern death penalty today at OSU a few days ago (referenced on this blog) showed clearly what a minority practice the death penalty really is in the US. Wake up Justices of the Supreme Court. The tipping point of decency has arrived in the US, later than in many other countries, but it is now staring you in the face!

Posted by: peter | Mar 18, 2011 5:50:40 PM


You are a lawyer. Even if you disagree with your client, as a lawyer, you must zealously advocate your client's position. If your client wants to delay things you have duty, do you not, to seek that delay as warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

If all of the requirements are met is it permissible in the Otisean scheme to seek delay?

Posted by: k | Mar 18, 2011 7:42:46 PM

Prof. Berman has a habit of posting provocative articles, likely a habit from trying to generate heated class discussion, to exercise young minds to the stretching point. On the other hand, he seems to post mostly left wing biased articles, and propaganda pieces. That one sided style likely reflects the reading he limits himself to. I hope he decides to expand his range of reading.

Not much to rebut in this angry, stream of consciousness excretion of emotion, an emotional dump on the reader.

Briefly, there is some confusion. The chemicals are poisons, not drugs. They are not for the benefit of a patient, with minimization of side effects to the extent possible. If a car were to be used for executions or to carry a suicide bomber, extensive safety testing results would not be required.

Instead, I will offer a prayer, despite my being an extreme atheist. I pray for an average, typical, natural death for Richard Dieter. This death will bring untold agonies for months, total humiliation as organ after organ fails, including the sphincters that allow us to delay going to the bathroom. Cancer will spread to bone, and cause dozens of loci of agony with the pain of a bone fracture. Heart failure will bring crushing chest pains, shortness of breath upon standing. Name 90% of natural causes. Equivalent agonies. Dieter is presumably innocent of crime, or has not been convicted of any. Yet, he will suffer before death arrives. Why should a butcher have an absolutely perfect death, quietly in sleep? The reason is that these maneuvers are pretextual. They should be rejected by judges with all legal costs assessed to the personal assets of the appellate lawyer, or the DEA snitch lawyer. False uses of the law should be immediately punished, or they will bring public contempt for the law. To deter.

Posted by: Supremacy Claus | Mar 18, 2011 10:31:04 PM

Hard to believe that they would use something so important without properly testing for it.

Posted by: Michigan Accident Attorneys | Mar 19, 2011 12:11:47 AM

k --

You present a wonderfully succinct summary of why I never represented murderers, and won't.

Posted by: Bill Otis | Mar 19, 2011 12:25:52 AM

You would never represent someone accused of murder, Bill?

Or do you mean you wouldn't represent a convicted murderer on appeal, which is almost as bad. If the world was filled with Bill Otises plenty of innocent men would have died on death row. For shame, you bloodthirsty Republican hack.

Posted by: jsmith | Mar 19, 2011 4:50:33 AM

I want right now to squelch the rumor that I paid jsmith for his comment in order to make my point that this site is less and less about argument as traditionally understood and more and more about simply insulting conservatives to drive off (what is here) a dissenting view. Over this last week, liberal McCarthyism has been in full throat -- a wonderful, and wonderfully revealing, display.

No, I did not pay him.

But I confess he would have been worth paying.

Posted by: Bill Otis | Mar 19, 2011 8:25:40 AM

What Dieter must avoid:

The majority of the world's populations, likely the majority populations of all countries, support the death penalty for some crimes - that includes the countries that do not have the death penalty.(1)

Such support is based upon justice - the sanction is just and appropriate for the crime committed.

Dieter also avoids that every argument that Gov. Quinn used as a reason to end the death penalty in Illinois was either false or deceptive.

1) "Death Penalty Support Remains Very High: USA & The World"

Posted by: Dudley Sharp | Mar 19, 2011 9:39:41 AM

Dudley --

"...the sanction is just and appropriate for the crime committed."

There you go again.

Don't you know by now that it is not permitted to talk about whether the DP is just?

You can talk about how, you know, it's racist, or about how America (make that "Amerika") stinks, or about how the rest of the world opposes the DP (even though it doesn't), or about how Roger Keith Coleman was executed though innocent (NOT), or you know, the latest can-we-use-this-drug-or-that-drug controversy -- sure, you can talk about all of that.

The thing you're supposed to avoid is whether it's just. If, for example, you try to talk about whether it's just punishment for the two guys up in Connecticut who killed Dr. Petit's wife and two daughters (the younger, age 11, after raping her) -- well, hey, you're a "bloodthirsty Republican hack." No discussion of the actual facts of the case is needed; indeed, it's not even allowed.

If you're an abolitionist, the whole point is to brush past a discussion of justice, or the facts, by a preliminary dismissal such as, "We all understand that this was a horrible crime and a tragedy, but the real issue is........"

And then you get to talk about anything BUT a just sentence for the killer, and instead get to talk about how, you know, America is being run by the Fascist Consiracy or Prison Industries or whatever.

Anything but justice.

C'mon Dudley, get with it.

Posted by: Bill Otis | Mar 19, 2011 10:58:57 AM

@Bill Otis
You forgot one thing, you have to act like an advocate for LWOP over death and ignore the fact that most nations that have banned death have done the same to natural life sentences.

Posted by: MikeinCT | Mar 19, 2011 12:35:40 PM

MikeinCT --

Good point. You also have to remember to keep concealed the fact that, after earnestly advocating for LWOP as the best alternative, you'll be litigating AGAINST THAT TOO as a violation of the Eighth Amendment or human rights or The Preferences of Those In The Know, or something.

Eliminating the DP is an important goal of The Movement, but not the only goal. The eventual goal is to eliminate any serious punishment whatever. This is because the killer is not to blame, not really. Society is to blame, because it has not completely adopted "progressive" programs. Eliminating the DP is where the agenda starts, but by no means where it ends.

Just ask peter or John K.

Posted by: Bill Otis | Mar 19, 2011 3:56:09 PM

well bill

" This is because the killer is not to blame, not really. Society is to blame,"

It sure it! since it did't shoot em while attempting to escape...even when handuffed and in chains!

hope you know i'm being scarcastic! Since you know i have no problem with the DP when applied to the right individual

Posted by: rodsmith | Mar 19, 2011 5:12:53 PM

The serious death penalty should begin with the one day trial of the entire hierarchy of the lawyer profession, about 15,000 internal traitors in their all out insurrection against the constitution. All are legal realists and traitors. They have thoroughly infiltrated our government and make 99% of its policies. It is the biggest, wealthiest, most threatening criminal syndicate in human history. The Mexican and Columbian drug cartels controlled their government only at the margins where it mattered to them, not where it mattered to every citizen.

They would be rounded up, get an hour's fair trial and get shot in the basement of the court upon pronouncement of the verdict, treason.

Then just about all social problems evaporate the next day. Crime drops by 90%. The economic growth rate jumps to its natural 10% a year. We are the top of educational attainment in the world. Little girls can walk home anywhere in the nation at Midnight, and they make it home. Why? Because the protected and privileged client of the lawyer elite has been eradicated at the earliest age palatable to the public.

Once the business community comes to that conclusion, the lawyer elite better run.

Posted by: Supremacy Claus | Mar 19, 2011 5:59:42 PM

When we say, lawyer hierarchy, no one here comes close to being at risk.

Posted by: Supremacy Claus | Mar 19, 2011 6:01:16 PM

I am a student who is concern on our laws. Very helpful blog! I really learned a lot. I hope there's a lot more blogs like this.

Posted by: driving school Bromsgrove | Apr 2, 2011 3:52:49 AM

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Posted by: Big pony | Apr 11, 2011 7:57:13 AM

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