As I recently concluded, the death penalty is beyond saving, not because it can’t be defended ethically and morally, but because the issues are tangled beyond repair.
The controversy over the legality of the so-called drug cocktails that somehow became our execution method of choice is a perfect example. The battles over capital punishment trapped policy-makers into this kinder, gentler, ridiculously complicated method of execution that has suffered snafus ranging from unavailable drugs to ugly extended deaths. The problem is the floating definition of “cruel and unusual punishment,” prohibited by the Constitution, but almost entirely subjective. Many judges think killing a killer is itself cruel by definition, and the more reluctant Western Europe becomes to execute the worst of the worst, the easier it is to make the argument that the death penalty is also unusual.
I don’t get it. I never have. India once executed condemned criminals by having the subject place his head on a stump under the raised foot of trained elephant, which on a command would smash the head like a grape. Quick, painless–messy!—but virtually fool-proof. A pile-driver would be an acceptable equivalent. Ah, but ick! In this stupid, stupid, intellectually dishonest debate, ick always equals “cruel and unusual,” because to opponents of the death penalty, killing people, even horrible, dangerous people, is inherently icky.
(Oddly, ripping unborn babies out of the womb is not, but I digress.)
I’ve admitted it, and I will again. (This lost Ethics Alarms Luke G., one of its best commenters the last time.*) It is obviously wrong to intentionally prolong an execution or deliberately cause pain, but if the occasional execution is botched and the condemned suffers, that should be cause for great rending of garments, nor should it be used to discredit capital punishment. As I wrote here about Clayton Lockett’s execution in Oklahoma…
“There was no question of Lockett’s guilt, and his crime was inhuman. Such wanton cruelty and disregard for innocent life warrants society’s most emphatic rebuke, and the most emphatic rebuke is death. It is essential that any healthy society make it clear to all that some crimes forfeit the continued right to not just liberty, but also life. Anyone who weeps because this sadistic murderer experienced a few extra minutes of agony in the process of being sent to his just rewards has seriously misaligned values. No method of execution will work every time, and to make perfection the standard is a dishonest way to rig the debate. If the death penalty is justified, and it is, then we should expect and accept the rare “botch.” Meanwhile, if the concern really is efficiency, reliability, speed of death and minimal pain, there are literally dozens, maybe hundreds of methods of swift execution that would accomplish this. They just won’t pass the standards of death penalty opponents, because no method will.”
Today the Supreme Court heard oral arguments on the question of whether Oklahoma’s use of the common surgical sedative midazolam did not reliably make prisoners unconscious during lethal injections, thus violating the Eighth Amendment’s protection against “cruel and unusual punishment.” It’s a ridiculous case, which arises out of the botched April 2014 execution of Lockett that sparked the post I just quoted. It is a ridiculous case because the method of execution isn’t worth arguing over. Elephant. Head. Problem solved. Why is Oklahoma fighting about which cocktail to use? This is the anti-capital punishment team’s game, and sooner or later, the result is preordained.
Unfortunately, you see, the advocates for the death penalty happen to be right, but not so bright. They may not even understand why they are right; they certainly have been losing the rhetorical argument for decades, and the legal consequences have followed. This case, for example, hinges in part on the credibility of Oklahoma’s key expert witness, Dr. Roswell Lee Evans, who has testified that inmates “would not sense the pain” of an execution after receiving a high dose of midazolam. Anti-death penalty activists and medical professionals have objected on the grounds that Evans, a board certified psychiatric pharmacist and the dean of the Harrison School of Pharmacy at Auburn University in Alabama, has never used midazolam on a patient and has, in fact, never personally induced anesthesia. Moreover, how can he, or anyone, testify with certainty whether a soon to be dead “patient” experiences pain?
Then there’s this little problem: his 300-page expert witness report included more than 150 pages of printouts from drugs.com, an online consumer website whose disclaimer reads, “not intended for medical advice, diagnosis or treatment.”
Now we are in the field of expert ethics. In this case, the conclusions are obvious:
1. A medical expert whose expertise is in whole or in substantial part based on consumer web sites that a judge, juror or corner wino could find and read themselves is neither trustworthy nor reliable, on this matter or any other.
Pro Publica quotes Dr. Kathryn Cunningham, the vice chairwoman of the pharmacology and toxicology department at University of Texas Medical Branch as saying, quite correctly, “As scientists we use primary literature – it’s a little different than drugs.com. As someone who is a scientist, we have resources available to use so we would not go to a website of this sort.” “If you’re trying to figure out whether it’s cruel or unusual punishment, the inquiry into the chemical component needs to be more robust and thorough,” David Loftis, the managing attorney of the Innocence Project, said. “Just because he’s a scientist doesn’t mean he knows the properties of the drug.”
2. Such an expert isn’t worth the undoubtedly princely fee he is charging.
3. Any state agency that relies on such a dubious expert as its star authority is itself incompetent, and deserves to lose.
* Luke G. wrote in his furious final sally, “You’re WRONG, point blank. If he forfeited any right to compassion or pity, we may as well have let the crowd beat him to death with bats. The fact that you’re not horrified by a man being tortured to death and chucklingly blow it off as being less worth notice than fucking BASEBALL terrifies me….And yes, I know it wasn’t intentional torture, but he died. In agony. And you just shrug? Abhorrent. Despicable. That this doesn’t stun you and make you sick to your stomach makes me question your very sanity.” His response inspired a Comment of the Day, here.
Source: Pro Publica