Justices Unmoved So Far by “Botched” Executions

     Anti-death penalty demonstrators lined the sidewalk in front of the Supreme Court Plaza on June 30 as the justices prepared inside the building to hand down the final decisions of the term. The demonstration drew little attention, however, amidst the crowds gathered on both sides of the anticipated decision on the Obamacare birth control mandate.
      The Abolitionist Action Committee has been organizing the annual “fast and vigil” against the death penalty at the Supreme Court Plaza for the past 21 years. The protests mark the anniversaries of the court’s 1972 decisions overturning all then-existing death sentences and the 1976 ruling reinstituting capital punishment under tighter guidelines.
      This year, the protest came against the backdrop of a growing national controversy over the now nearly universal method of execution: lethal injection. Things have gone wrong, badly wrong, in three executions so far this year. In the most recent instance, it took almost two hours — and 15 successive injections of the sedative used — for Joseph Wood to be put to death in Arizona on July 23.
      The grisly descriptions of “botched” executions from Arizona, Oklahoma, and Ohio are turning the national stomach, but so far at least they are having no substantial impact on Supreme Court justices. On the eve of Wood’s scheduled execution, the justices on July 23 overturned a decision by the U.S. Court of Appeals for the Ninth Circuit blocking the execution — with no recorded dissents.
      The court set the pattern for the year in January by refusing to stay the first of what would be three lethal injection executions that were not quick but prolonged and anything other than humane. Ohio inmate Dennis McGuire was executed on Jan. 16 after losing his Eighth Amendment challenge in lower federal courts to the state’s plan to use an untested combination of drugs in his execution; the Supreme Court declined to review the issue without comment or recorded dissent.
     McGuire “struggled, made guttural noises, gasped for air and choked for about 10 minutes before succumbing” to the sedative used, according to the eyewitness account by Columbus Dispatch reporter Allen Johnson. He was pronounced dead 24 minutes after the execution had begun.
     The court showed only slightly more interest in the issue after McGuire’s execution. When Missouri inmate Michael Taylor brought a similar plea to the court in February, three liberal justices — Ginsburg, Sotomayor, and Kagan — voted in dissent to grant a stay. Taylor’s execution on Feb. 25 proceeded without complications within hours of the Supreme Court’s refusal to act. Six weeks later, the court on April 7 declined to hear two other lethal injection cases: one by another Missouri inmate, David Zink, and the other by Louisiana inmate Christopher Sepulvado.
     Oklahoma inmate Clayton Lockett’s execution on April 29 intensified the debate over lethal injections. Lockett had waged a battle similar to Taylor’s for information about the drugs to be used in the lethal injection, but Oklahoma courts turned him down. Lockett was supposedly sedated as the execution began, but witnesses said he convulsed and mumbled for several minutes. He was pronounced dead — not from lethal injection but from a heart attack — 43 minutes after the execution began. State officials blamed the prolonged death on improper injection of the drugs, not the drugs themselves.
     The Supreme Court did grant a stay of execution on May 21 in the unusual case of Missouri inmate Russell Bucklew, who has a rare physical condition that creates a serious risk of physical pain from a lethal injection. The order effectively called on lower courts to hold a full hearing on the issue, now set for September.
     With the McGuire and Lockett examples in mind, one would expect a humane judicial system to take extra care with the next inmate’s plea for more information about lethal injection procedures. And in fact the Ninth Circuit blocked Wood’s execution when a three-judge panel issued a split decision on July 19 enjoining the execution until he received the information sought; the full court declined on July 22 to rehear the case, over the dissent of 11judges.
     The Supreme Court, however, would not hear of it. The justices overturned the Ninth Circuit’s decision on July 23, without a word, allowing the execution to proceed.
     Wood’s execution later that day was ghastly in the extreme. Arizona TV newsman Troy Hayden said Wood looked “like a fish on shore gulping for air.” The state eventually released a document showing that 15 successive doses of the sedative midazolam were administered before Wood was finally pronounced dead one hour and 56 minutes after the execution began. As the American Civil Liberties Union put it, the execution “broke the Eighth Amendment, the First Amendment, and the bounds of basic decency.”
     For death penalty abolitionists, the lethal injection controversy is both an opportunity and a distraction. “We oppose all forms of execution,” says Abraham Bonowitz, an Abolitionist Action Committee spokesman. But Bonowitz says the botched executions show that the procedure can be “a nightmare” for those who watch or carry it out.
     Bonowitz sees a favorable political trend: fewer executions are being carried out and six states have repealed the death penalty in the last seven years. So far, however, the Supreme Court appears largely unmoved either by political trends or the disturbing execution scenes of the past year.