Last week in Arizona Joseph Wood was executed by lethal injection for a double murder committed in 1989. The execution would have drawn little attention, particularly in the UK, if it were not for the manner of his death. Joseph Wood was expected to meet his demise within ten minutes of the execution starting, however it was one hour and 57 minutes before he was pronounced dead. The ordeal went on so long that his representatives had time to file an appeal for an emergency stay of execution.
The length of time it took Joseph Wood to die was but one concern; his legal representatives claim that during those two hours he gasped more than 600 times, and snorted throughout. There is certainly an argument that an execution such as that of Joseph Wood (not to mention Clayton Lockett who died of a heart attack after the injection failed and the execution was halted; and Dennis McGuire who appeared to gasp, snort and choke for 25 minutes) is in breach of the US Constitution in that it amounts to ‘cruel and unusual punishment’.
The recent crisis can be directly linked to the unavailability of the drugs previously used in the lethal injection process, either by the companies directly, or through international restrictions on the export of those drugs to countries which practice capital punishment, such as EU restrictions on the distribution of Sodium Thiopental.
This has resulted in States seeking untested alternatives, and experimenting with drugs previously unused. Needless to say the experiments have not been entirely positive, and the execution of individuals in such a carefree and hurried (at least in terms of not waiting for a suitable alternative) way, given the nature of the executions aforementioned, must amount to cruel and unusual punishment, not least because the State cannot accurately predict the length of time or manner in which the person will die.
The State had informed Joseph Wood’s legal team that he would be executed using a two-drug combination of Midazolam and Hydromorphone, they declined to provide further information, including the name of the manufacturers, citing a State law which demands confidentiality to protect manufacturers from reprisals.
The result was a legal challenge which appeared to be in Joseph Wood’s favour when the 9th Circuit Court of Appeals barred the State from executing him until they had provided information as to the name and origin of the drugs to be used, and the qualifications of the executioners. The decision was however overruled by the Supreme Court, in what now appears to be a questionable decision given the length of time taken for him to die and the discomfort allegedly suffered during those two hours.
Whether the execution is cruel or unusual punishment is not a pertinent issue for many death penalty supports, in the case of Joseph Wood the victims queried why the drugs used in the execution where even being discussed, claiming it had been blown out of proportion, with Richard Brown questioning “Why didn’t we give him a bullet?”
It is an interesting question, as I have always understood it, the lethal injection was introduce as a humane (or at least more humane) method of execution, if the drugs which made that so are no longer available, the injecting of alternatives which induce prolonged pain and suffering are not viable alternatives, after all it was the way in which people died that made it the most acceptable means of achieving death, not the method, therefore if injections now cause prolonged pain and suffering surely they no longer hold the primary position in the list of humane methods of execution.
Tennessee has introduced a law which reinstates the use of the electric chair if drugs for lethal injection procedures cannot be obtained. Therefore we must question whether there are far reaching unintended consequences arising from the trade embargo assault on execution via lethal injection: are alternative less humane drugs going to be used in an experimental fashion as is currently the case? Are States going to revert to previous methods of execution, such as the electric chair? Or will it lead to an abolition of capital punishment in the US? At present I fear the last is the least likely.
In direct response to the question ‘why didn’t we give him a bullet?’, although arguably more humane than two hours spent gasping and snorting, unless an automated machine were developed to fire the bullet, a person would have to pull the trigger, which could not be disguised as a quasi-medical procedure as the administration of the lethal injection is at present. Aside from practical issues, the creation of distance between the executioner and the executed is arguably a prime consideration in the perceived acceptability of that method.
There is also the argument that death is a perfectly acceptable and deserved punishment, often disproportionately lenient in nature when compared to the crimes committed by those executed. Why should we be concerned with their pain and suffering, surely cruelty is deserved in response to their own cruel deeds?
In response to this I make two general points: firstly, from a general humanitarian standpoint the intentional murder or execution of any other person should never be condoned (accepting certain circumstances where it may be unavoidable, self-defence for example, wherein it should not be condoned but not viewed as punishable).
Secondly, the idea that the State has ruled that the notion of public protection, which could be achieved by lifelong incarceration, is irrelevant, deciding instead that an individual has lost their right to exist, and that the State is in a position to make such a decision, is deeply troubling. Furthermore if that right has been revoked, and an execution is carried out using a method which amounts to cruel and unusual punishment, or even worse intentionally inflicts cruel and unusual punishment, the State then moves into the dangerous territory of reciprocal retribution, thus diminishing the strength of their judgment in sentencing the offender to death but committing an equally violent and intentionally tortuous act.
Whether an execution amounts to cruel and unusual punishment matters because it is a principle by which most modern democratic societies judge the boundaries of acceptability. The definition of cruel and unusual punishment is what should be in issue. The physical pain caused in the process of an execution should not be the determining factor in deciding whether it is cruel. The psychological suffering (regardless of whether it is arguably deserved) of knowing the date and manner of one’s death is cruel in itself, and the widespread international disapproval of capital punishment, demonstrated by the restricted access to drugs used in lethal injections, is evidence to suggest that in the world at present it is considered unusual. Perhaps the recent series of physically cruel executions may be a step forward in determining that any execution, not just those which are newsworthy for their errors, is inhumane, cruel and unusual.