by Nicole Stinson
Photo courtesy of Joe Flintham.
Imagine being condemned to die. You gasp for air for over 20 minutes, unable to breath and unable to die for the time it takes to reach half time in the NBA. These were the final moments of Dennis McGuire, an Ohio man on death row and the recent American guinea pig for a new form of lethal injection which until now had been untested in the US.
I use the term “guinea pig” but McGuire was treated like less than that, as he was administered a substitute for the drug Pentobarbital, which is often used to put down cats and dogs. It was later released that a compound drug was used.
“The people of the state of Ohio should be appalled at what was done here today in their names,” Allen Bohnert, McGuire’s attorney, said to the Associate Press.
In a report written after the execution the Warden of the Southern Ohio Correctional Center wrote: “the process worked very well and the execution was carried out in compliance with the state’s death penalty protocol”.
Jen Moreno, Staff Attorney at the UC Berkeley’s School of Law’s Death Penalty Clinic, highlights the Eighth Amendment, which prohibits the use of cruel and unusual punishment. When looking at the case of McGuire, I think it is safe to say dying slowly over 26 minutes counts as cruel and unusual to the point of breaching basic human rights.
Moreno agrees, “The recent problematic executions in Ohio and Oklahoma call into question whether those states are carrying out constitutional executions.”
“When states turn to compounded drugs, even the most basic questions about how the drugs will be made and whether they will work as intended are shrouded in secrecy,” she tells BTR. “In the last year, there has been an increase in secrecy surrounding the process as several states have passed new laws making information about execution drugs and their suppliers confidential.”
Now let’s go further and imagine in a case like this, that the person was later found innocent. Not only will this person have been wrongly executed but they also suffered a long and painful death because of a substandard lethal injection. Brandon Garrett, a law professor at the University of Virginia tells BTR, “the same types of human errors that can occur in any criminal case can occur in a capital case.” In his study with colleague, Stephen Braga they found 18 cases of people executed that were later exonerated through DNA evidence.
What also is appalling is that only a few years ago Pentobarbital was doubted as a substitute for sodium thiopental, the anesthetic used original in executioner’s cocktail because of it questionable effectiveness on humans. Prior to 2011, Pentobarbital had rarely been used on humans except to induce medical comas, which was temporary. In 2011, Hospira Inc., America’s sole manufacturer of sodium thiopental, stopped making the sodium after Italian authorities objected to it being made in their country for the use of capital punishment in the US. Italy abolished the use of the death penalty for all crimes in 1994 and their last execution was in 1947.
Now with a shortage of Pentobarbital, states still using capital punishment are looking for alternatives. I would like to highlight that America is now at the point of finding a substitute for the substitute lethal injection drug.
This experimentation is just one of many questionable responses to the recent lethal injection shortage in the US. In some states, legislators are even calling for a return to some of the more traditional and violent execution methods such as the firing squad proposed by State Representative Rick Brattin of Missouri. A bill in Virginia is also expected to pass this week which will allow the state to use electric chairs in executions.
Once outlawed by all states, the electric chair was considered barbaric and a breach of the constitution. Since then, the US has only moved backwards. The action also breaches yet another part of the United Nations Declaration of Human Rights of which the US is a member. The use of the death penalty alone violates a person’s right to life now these measures will also break their right not to be subjected to cruel and inhumane punishments.
Now some would argue that by committing atrocities these people have forfeited their human rights but again this breaks the notion that these rights are universal to all humans.
The system is basically a direct contradiction: we are going to deem you rational and human enough to stand trial but when we decide your punishment, you are no longer a human with rights anymore? No wonder there has been growing support for abolishing even in the US with 18 states outlawing capital punishment.
From a human rights perspective but also from a practical view, the US needs to stop using capital punishment. Whether you consider those on death row as having forfeited their human rights or not, the lethal injection shortage shows just how difficult it will be for the US to continue executing people. The costs of finding new alternatives and the risks associated with failure are not worth it. Sometimes people need to stop and think, what if I had been McGuire?