Scared to death

Ohio’s battle with lethal injection

By Sarah Sidlow

There’s nothing like a good deadline to increase productivity.

That’s what the state of Arkansas decided when it realized its supply of one of the drugs used in its lethal injection cocktail, midazolam, expires at the end of April. Cue death row executions in double time. Seriously. Last week, Jack Jones Jr. and Marcel Williams, two convicted murderers, became the subjects of the first double execution in the U.S. since 2000.

In recent years, the lethal injection scenario has sparked scores of legal questions. In Ohio, the phrase “botched execution” became an unfortunate buzzword, when in 2014 Dennis McGuire was subjected to a 24-minute struggle after being dosed with a lethal injection protocol that included midazolam. Many argued that, aside from being totally gruesome, this amount of torture amounted to cruel and unusual punishment, which, as it turns out, is unconstitutional. Yes, even for criminals. Other states that have recently botched executions include Arizona, Oklahoma, and Alabama—all because of midazolam.

The state of Ohio hasn’t performed a lethal injection since McGuire’s. In fact, in January of this year, a federal judge in Ohio shut down the state’s ability to lethally inject—because of midazolam.

The plaintiffs in that January case were the next three people scheduled to be executed in Ohio: Ronald Phillips, Gary Otte, and Raymond Tibbetts, who argued using midazolam violated the Eighth Amendment and Ohio’s own lethal injection statute, which requires “a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death.”

But last month, a federal appeals court agreed to review the ruling.

Lethal injection is the primary method of execution for all states and the federal government. And although Ohio’s problematic three-drug protocol is not universal, in 2015, the U.S. Supreme Court upheld the use of midazolam for lethal injection in executions by a 5-4 vote. However, the minority opinion used the opportunity to raise additional questions about the constitutionality of the death penalty overall.

Some of those raising their voices against lethal injection are looking for the most extreme result: the death of the death penalty. Botched executions, wrongful sentences, and basic differences in moral opinion lead many to argue whether the American justice system is doing right by all its citizens. Others say, the death penalty is fine by me, but even violent criminals should not suffer unjustly at the hands of the state. Then there’s federal Judge Alex Kozinski who would rather employ a firing squad or guillotine over lethal injection because it is “100 percent effective.”

But those hoping for an appeals court reversal are eager for the state to resume its execution schedule. To some, violent criminals deserve violent ends. The time and money spent on finding a humane solution to death is wasted on rapists and murderers, they argue, to say nothing of the taxpayer money spent on keeping people on death row for years and years.

According to the Death Penalty Information Center, of the 1,054 executions by lethal injection performed in the U.S. since 1890, 75 (just over 7 percent) went wrong in some way. Among other forms of execution, including hanging, electrocution, and firing squad, lethal injection had the highest rate of botched executions. For some, that number is high enough to justify finding a better solution to lethal injection, or getting rid of the practice entirely. For others, the statistic is low enough to argue there’s no reason to worry.

Two of Ohio’s upcoming executions are scheduled to take place before the appeals court hearing. Ronald Phillips—an Akron man convicted of raping and murdering a 3-year-old girl—could be executed as early as May 10.

Reach Dayton City Paper debate moderator Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

 


Debate Forum Question of the Week:

Should Ohio go forward with lethal injections?


 

Slowly driving the needle

Ohio’s lethal injection response is a sorry excuse

By Ben Tomkins

Perhaps I have softened toward the human condition in my old age, but unlike many people I know, I have become more and more opposed to the death penalty the older I get. Things really changed for me the moment I realized North Korea was performing its executions more humanely than we were.

Ask morally average Americans how to execute a human being convicted of a heinous crime, and they consume themselves with finding the least painful and quickest way of doing it. Unfortunately for every Ohioan who is complicit by association with the state’s lethal injection protocol, the state’s answer is not only pathetic, it is flat-out terrible. The current drug protocol was selected because the standard cocktail (a word that puts the most positive spin possible on the subject) was increasingly hard to come by and a substitute method was required, because it was neither cost-effective nor deadline sensitive to continue relying on it.

This should give away the first piece of ground in the lethal injection argument. When it comes to eliminating a human life, “cost-effective” is a military criterion, not a civic one. Chemical weapons, for instance, exist because in a total war scenario they are an extremely cheap way of getting rid of large swaths of human roadblocks to the great and magnificent cause of allowing those in power to feel like winners. Of course, we never use them because they are “inhumane.” So Americans spend millions of dollars on laser-guided bombs that minimize civilian casualties by flying themselves through open office windows and blowing up inches above a poor, innocent custodian’s Superman lunchbox at 3 a.m. to complete the project in a speedy (and ironic) way.

Why, then, do we not do the same for our own citizens? In North Korea, five senior officials were recently executed with the standard method of placing them a distance from an anti-aircraft gun which would preserve the cleanliness of the affair and convert their biomass into a pink mist with a metal slug the width of a drainage pipe traveling at several times the speed of sound. In almost every constitutional regard, this method is far more acceptable than Ohio’s lethal injection protocol. The only legal objection I could muster is that it seems to be an unusual form of punishment, but in the end, I was forced to admit it’s merely a creative one.

After further reflection, I even had to concede “creative.” An anti-aircraft gun is a weapon designed to concisely and consistently end human lives that are protected by great distances and speeds, housed within metal exoskeletons. At close range, though, it makes killing someone as nearly laughable as it can possibly be. Even a near miss will tear a person to pieces because of the violent air turbulence involved. I used to have a former-Marine roommate who described how, during the Persian Gulf, tank rounds could be used to great effect in urban warfare by firing them down an alley. As the shell passed through, its pressure differential would suck all the enemy soldiers out of the doorways they were hiding behind and into the street, where they were far easier to kill. In other words, as far as capital punishment goes, we needn’t waste our time pretending the North Koreans don’t have a good point.

The moral (a fantastically appropriate word) is that the method of execution is simply not the problem. It is the long, drawn-out torture of dangling a noose in front of a person’s face for decades that troubles us. This is where our methodology is clearly superior to the Dear Leader’s approach, which is one of swift torture and crushing the soul out of a human being with the sole of a boot before taking his life. Nevertheless, once you’ve decided to do it, you’ve given up on the idea that a society can be better than the worst of its constituents. Surely it is a more “surgical strike,” both literally and figuratively, to stick the warhead into the arm of the person we are trying to eliminate, but it is extremely telling that we offer a portfolio of appeals and mitigating circumstances because we are horrified by the moral burden that we must bear if we execute an innocent person. It is cruel and unusual in the extreme to tell a young man “Good night, Westley. Good work. Sleep well. I’ll most likely kill you in the morning,” but for the obvious fact that the Dread Pirate Roberts never actually set a date and gave him the run of the boat. For that matter, he only subjected Westley to it for three years; Ohio usually drags it out for five times that long.

Execution in Ohio is not amoral just because of the potential 24 minutes of writhing in and out of consciousness; it’s the decades of slowly driving in the needle. If we truly believe in the moral high road of law, we shouldn’t be able to walk down the hallway to the executioner’s table.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. For more of his work, visit HillofAthens.com. Reach him at BenTomkins@DaytonCityPaper.com.


Cruel and unusual punishment

Until the state gets it right, abandon lethal injections

By David H. Landon

I’ve represented the conservative point of view on literally hundreds of topics in Dayton City Papers debates over the past 14 years. I can usually be counted upon to base my column on recognized conservative principles and opinions. Some might consider my column in this week’s forum to be an exception to that rule.

Based on recent events, I am revisiting my views on the death penalty and whether our current policy is consistent with the conservative principles that I hold dear. How we handle the execution of convicted criminals has become an increasingly difficult moral issue with which society is struggling. I have always supported the death penalty. Currently, the issue of the numerous botched executions using lethal injection is causing me to have second thoughts. The Eighth Amendment to the Constitution forbids the state from using cruel and unusual punishment. The Bill of Rights is a restriction against the government. These botched executions could certainly be considered cruel if they leave the inmate struggling to breathe for long periods of time—up to 20 minutes in one case.

There are several reasons that would suggest a need to review the policy that allows the state to take the ultimate right from a member of a civilized society: the right to life. This review of policy should not be confused as some bleeding heart notion that the worst criminals among us don’t deserve death. Do these beasts deserve death? I daresay they do. How we achieve those deaths is what determines whether or not we are an enlightened society. In the end, we may decide that giving the state the power to put those horrible individuals to death is not consistent with who we want to be as a people.

So, let’s answer these basic questions to determine if current policy is consistent with the rule of law.

One issue I believe deserves our thoughtful consideration is the many instances where individuals have been found guilty and sentenced to death, only to later be exonerated. Recent studies and new technologies involving DNA testing provide some very strong evidence against the use of the death penalty. Since 1973, at least 158 people from 26 states have been exonerated from death row after evidence of innocence was found. Between 2000 and 2011 there was an average of five exonerations per year. The most recent exoneration was a Louisiana man who won a retrial in 2016 and was found not guilty in April 2017. In these instances, the state was on the verge of executing an innocent person. Although our jury system is very good at determining the guilt or innocence of an individual, it is not perfect. There is a strong argument to be made that a system of justice that can result in the death penalty must be perfect.

The next perplexing question is this: after affording an accused due process and then finding him guilty, if we are to proceed with the execution by lethal injection, how is it possible that we continue to screw up the execution? This may sound somewhat crass, but I believe that most veterinarians could humanly and painlessly put a prisoner permanently to sleep. So why can’t the state get it right? Stay with me here. Most pet owners have faced the difficult day when they have had to end the suffering of a beloved pet. Faced with that task, they take their animal to their vet. I’ve been in that difficult position, and the process used by my vet was painless and humane. If we can put an animal to sleep painlessly and humanely, why can’t we do the same thing for a human being? In veterinary medicine, the provenance of their drugs is without question. They have been proven reputable and reliable. The euthanasia solution induces an almost immediate state of anesthesia as the animal drifts off to sleep. This is quickly followed by a second drug, which stops the heart. Once the injection has started, the pet becomes immediately anesthetized and then leaves this life in less than a minute. No pain, no suffering, only peace.

While states are scrambling to find second-rate drugs and concoctions of drugs to kill people, veterinarians have no problems. Why is this so difficult to get right? One reason is that drug companies have withdrawn their participation in supplying the cocktail of drugs needed. The recent run on executions in Arkansas can be attributed to the approaching expiration date of the state’s supply of lethal injection medications. Ohio is having the same challenges that Arkansas has experienced in finding a supply of reliable drugs to use in executions.

I have not reached a final conclusion on the viability of the death sentence in a civil, enlightened society, but there has been a serious shift in my thought process. Until the state of Ohio can be confident that the lethal injection drugs are 100 percent effective in a quick and painless death, it should stop their use.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at DaveLandon@DaytonCityPaper.com.

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Ben Tomkins
Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

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