Death Throes Of The Death Penalty: Dumb Expert, Dumb Advocates, Dumb Debate


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, 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 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.

And will.

* 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.


Pointer: Fred

Source: Pro Publica

19 thoughts on “Death Throes Of The Death Penalty: Dumb Expert, Dumb Advocates, Dumb Debate

  1. I am of two minds about the death penalty. There is no question that innocent men have been executed, and that is wrong and irreversible. [It also means that out there is someone who is guilty who will never be brought to justice.] On the other hand, there is the first man (white, by the way) who was executed when Virginia re-established the death penalty. He had gone to the Eastern Shore, beaten and raped an elderly lady, nailed her hands to a chair, and then burned her house time around her. Second time he had done something like that, Hard to muster much sympathy for him. I have defended only one capital case in my career–the middleman in a murder for hire. He got life. As I say, I’ve got very mixed and unresolved thoughts about the death penalty and its imposition.

    • Hate it. This is something else. It’s a little like my position on gun regulations: the arguments for them have been so incompetent and incoherent that I can’t be identified with that whole side to the debate. I’m a bystander in this—no influence whatsoever—and the defenders of capital punishment are embarrassing. I want nothing to do with people who use a kid flipping a bird as justification to execute him—if they can’t make that case legitimately, then he shouldn’t be executed. And using an expert who just cribs off of the web? It’s almost like they are throwing the match.

  2. Dumb? Yup, but SCOTUS had its chance to end the death penalty in 2008. I don’t see them pulling the plug nationwide now.

  3. I think I’m on record for offering my invention to help with execution: carbon monoxide. It makes me wonder what the most reliable method of execution is. It would have to be something that had as few moving parts as possible. Maybe a poison or something else chemically sound.

    I’m basically reinventing lethal injection, aren’t I?

    If we’re going to have capital punishment, then we should strive to make it as failure-resistant as possible. The death penalty opponents who want to make the reliable compounds difficult to get do not seem to be operating towards a goal of either saving lives or alleviating suffering. They just want execution to be impossible, however it happens.

  4. I’ve always said that I object to granting this particular power to the state.* But if you absolutely must, then buy a hemp rope, calculate the drop to snap the neck and be done with it. If the neck doesn’t snap unconsciousness still won’t take very long.**

    Popping heads like a grape would be unkind to family members of the condemned who might want a body to bury and aren’t killer themselves and it runs into religious issues specifically with Jews, we have beliefs about returning the whole body to the ground. That’s why we don’t go for embalming (removes the blood) and why special religious persons are sent in after a suicide bombing to find every bit of person scattered around. Creating a situation where a rabbi needs to go in with a sponge and a bucket is an unnecessary unkindness.

    *I understand that war, prison uprisings and attempts to bring someone into custody can result in death. The objection is specific to people already safely in custody.

    **With _severe_ penalties for anyone who might take actions intended to cause this result rather than a quick snap.

    • This sounds heartless, but whatever indignities and hardships executing a murderer visits on his or her family is 100% the fault of the condemned. I see no obligation, legal, ethical or otherwise, to provide a neat clean body. Not the State’s concern, and the issue shouldn’t get in the way of justice. Put him in a blender.

  5. The problem is the floating definition of “cruel and unusual punishment,” prohibited by the Constitution, but almost entirely subjective.

    This is due to the malfeasance of the Supreme court with their whole evolving standards of decency thing.

  6. have been watching “White Queen”- a number of executions, a few by beheading and one by drowning in a vat of wine. None were botched, Perhaps, we need to relook at Medieval methodologies!

  7. I am in favour of it for brutal and/or premeditated murders. I think method is important and should be dramatic but not gruesome. My problem with the lethal injection method is that it is so much like euthanasia or putting down a rabid dog. It doesn’t send a strong message that this person made a conscious, wicked decision and is receiving a just punishment but rather that they are sick so we are going to put them down via gentle medical procedure. Definite ick factor for me. It’s almost an apologetic method of execution. A swift hanging is best; quick and dignified but violent enough to have real moral force (this is how journalist Peter Hitchens more or less puts it). I disagree that there is no obligation to be respectful of the bodies of the condemned. (Don’t we tend to and respectfully bury the bodies of enemy combatants?) Paying for their crime with their life is sufficient.. obliterating their faces in the process would be excessive and wrong in my opinion.

  8. In Nigeria, drug dealers (like Freddie Gray) are taken out and treated to a .45 slug in the back of the head. That’s about as quick, cheap and efficient as you’re going to get. There are just some monsters out there who, by their depredations against the innocent, have forfeited their right to live. The only thing beyond the evidence a juror should consider is whether he’s convinced enough of the guilt and savagery of the defendant that he would agree to act as executioner, if requested.

  9. On October 18, 1975, Edwin Charles Simants loaded a .22 rifle, walked across the street in Sutherland, Nebraska. He illegally entered a home. There, he tried to rape 10 year-old Florence Kellie. When he was unable to, he shot her in the head. As she was dying, and after she died, he raped her. He fatally shot her grandfather, Henry Kellie, her grandmother, Marie Kellie, her uncle, David Kellie, 32 and David’s son, Danny, 5 and daughter, Deanna, 7. He had sex with Marie’s dead body. He sexually molested Danny and Deanna. Subsequently, he was arrested, charged with 6 counts of murder, and sentenced to death. During the trial because the Sheriff played cards with some of the jurors where they were sequestered in a North Platte, Nebraska hotel, a mistrial was called. Simants was retried in Lincoln, Nebraska and was found legally insane. He was sentenced to a mental institution. Now, 40 years later, Simants has been declared “cured” by four psychiatrists from what was called, “an alcohol-infused psychosis”, which was the basis for his insanity defense. He was never charged with unlawful entry/breaking and entering, unlawful use of a gun, two counts of rape, necrophilia and pedophilia. So, what is going to happen is Simants, an alcoholic (there is no known cure), a pedophile (there is no known cure) and a murderer is going to go free. If ever the death penalty was warranted, it was warranted in this case. The reason I post this here is that I am seeking sponsors and advocates to help me with the making of a documentary film to create awareness for pedophilia and to try to keep Erwin Charles Simants incarcerated for the rest of his life. He is threat to my kids and grandkids as well as your kids and/or grandkids as well as all adults. Please pass this posting your friends, family and business associates. I really need your help to get sponsors and advocates to help me make this film. Thank you very much.

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