License To Kill
Our Nation’s (& Nevada’s) Struggle To Maintain Death Row
By Tyler J. Morgan, Esq.
On a Wednesday night in 2006, at 8:59 p.m. in Carson City, Daryl Mack laid alone on the execution table. As he prepared for his fate, he gave his last words, “Allah is great. Allah is great.” By 9:02 p.m., a combination of sodium thiopental, pavulon and potassium chloride had run through his veins and his final breaths were exhausted. He was officially pronounced dead by 9:06 p.m. For many, this was “justice served” for a man who brutally murdered two women. But for many other Nevadans, feelings are different, and “justice served” doesn’t equate to execution. In fact, after tonight, the question seems to now be, “Will Nevada execute another inmate on death row again?”
Capital Punishment In The United States
Capital punishment has been a staple in the American justice system since our inception as a nation. Its purpose is simple: deterrence. If people know that heinous crimes come with a punishment of death, one would expect such crimes to diminish. However, to the contrary evidence is still insufficient in proving it to be an actual deterrent of violent crime.
Capital punishment began with firing squads and hanging and eventually transitioned to other methods before evolving into the lethal injection we know today. The arguments, whether for or against it, have lasted centuries. It was banned by several states dating back to the beginning of the 20th century. Then, in 1972, executions were deemed unconstitutional in Furman v. Georgia, only to be re-constitutionalized in 1976 in Gregg v. Georgia. Today, with lobbying by groups such as the American Civil Liberties Union (ACLU), the chatter surrounding capital punishment has never been so profound.
The history of the American justice system adjusting the methods of execution is a direct response to the century-long arguments from advocates against the practice. It is the very fact that our nation has continued to evolve the methods for executions through various means that proves society’s desire to find a so called “tolerable” means by which to execute the most monstrous of men.
In the 1920s, when the number of executions spiked, it was Nevada that pioneered a path to using gas chambers. The electric chair, now reserved as an alternative method to lethal injection, has been used since the late 1800s and was the preferred method used until the 1900s, when America embraced the lethal injection. (Something about the idea of frying flesh no longer sat well with the general public.)
All methods are worthy of criticism from a human rights, cruel-and-unusual-punishment standpoint, but why now are we showing so much distain for the lethal injection? It relates to our track record of executions. It is true we have successfully executed a lot of heinous criminals; however, what has been swept under the rug through the years are all the times our system has botched the process. Many of us detached from the topic see the lethal injection as a civilized way by which we rid the world of evil; but, the reality is the contrary. Today, our justice system is struggling to maintain capital punishment, and our very own state is currently building a new execution chamber in hopes of performing lethal injections and playing the role of grim reaper. It’s a role that, in the opinion of Chief Judge Alex Kozinski of the US Ninth Circuit Court of Appeals, lives up to its brutality.
“The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.” Wood, III, v. Ryan, U.S. Ninth Circuit. (2014).
Cruel & Sometimes Horrific Punishment
When Daryl Mack was put to death on April 24, 2006, the process was swift. The same cannot be said for the approximate 150 victims of botched electrocutions or lethal injections. Enter Clayton Lockett. Last year, The Atlantic published the article, “The Cruel and Unusual Execution of Clayton Lockett,” and instantly, a spotlight was again placed on capital punishment. The issue wasn’t whether the condemning of criminals to death was necessarily right or wrong. The real issue was more simple: Do we know what the hell we are doing?
In 2014, Lockett was placed on a gurney in an execution chamber in the Oklahoma State Penitentiary. He was prepared to die. What he wasn’t prepared for was the ineptitude of the personnel conducting the execution and an agonizing death. Over a dozen attempts were made to secure an IV, one of which was a failed attempt at the jugular vein. Finding a vein to place an IV can commonly be troublesome, especially when the individual has a history of drug abuse. In Lockett’s situation, the IV was eventually placed in his groin, only to dislodge moments before the medications could be pushed through him. The result? Forty-three minutes of agonizing pain and suffering as lethal dosages of drugs were injected into his muscle, leading to a massive build up in his groin. He jerked violently. He tried to scream but couldn’t. He became paralyzed, but the sedatives had not kicked in and the agony was evidently real. Frightening. So much so, the prison staff had to lower the curtains to spectators before, finally, to the relief of the overseeing staff, he was pronounced dead.
How does that happen?
Unbeknownst to most, executions aren’t always performed by doctors. In fact, physician participation in executions continues to be debated in courts around the country and the lack of physicians with the willingness to participate is making it harder for courts to impose requirements for physician supervision in executions. The American Medical Association’s code of ethics prohibits medical practitioners from performing executions, as doctors are only allowed to assist in the certifying of death. Regardless of AMA restrictions and the shortage of those willing to participate, doctors have in fact played at least minimal roles in executions, however, most of their identities have remained under confidential safeguards. These roles tend to be minimal and relate to merely certifying death and not the actual administering of medications–the step most desiring of someone with medical experience. Even more, the dosages used in each execution are determined primarily on guesswork based on what has worked in the past or what reasonably should work because sometimes the same medications aren’t available. Needless to say, there is no uniform guide to dosages. This struggle to properly execute is becoming serious fuel for the anti-death penalty advocates who argue that our capital punishment system is a violation of the 8th amendment. (There are also significant assertions of violations of the 14th Amendment for its discriminatory use upon racial minorities.)
The 8th Amendment of the United States Constitution prohibits the imposition of cruel and unusual punishment. But the question becomes, “What is cruel and unusual punishment?” Unfortunately, there is no conclusive answer because no one can detail what is cruel and usual punishment. That being said, courts today prefer to interpret the cruel and unusual punishment clause on a basis of social human decency and today there is a lot of commotion in society regarding capital punishment’s decency.
If Lockett’s execution isn’t startling enough, browse the facts behind the execution of Charles Warner in 2015. When Warner faced his final moments, the drug potassium acetate (used for tissue preservation) was incorrectly used in lieu of the lethal potassium chloride. The result was an execution by mummification. Throughout the 18-minute process, observers listened while Warner agonized in pain. “It feels like acid […] my body is on fire.”
Needless to say, we obviously have a problem.
The National Drug Shortage
Currently, there is a major shortage in drugs typically used for executions, and the reason is clear: Drug companies don’t want their medications used to kill people on purpose…It’s hard enough for them to deal with the public scrutiny over their drug prices. The last thing they want is to be labeled as executioner.
In 2010, the U.S. pharmaceutical company, Hospira—manufacturer of the commonly used execution drug thiopental—halted production because of an alleged manufacturing issue. But soon, the true reason surfaced, when the company requested that all state prisons stop using the drug in lethal injections as it was never intended to be used that way. This lead some states to seek stock from unregulated dealers in Britain. However, British officials quickly realized what was going on and immediately stopped exporting the drug into the United States (the European Union is staunchly against capital punishment). Prisons have tried to seek other drug alternatives but more and more drug companies are refusing to allow their drugs to take part in executions. Today, many manufacturers have implemented distribution controls to ensure prisons can’t get possession of further stockpiles of drugs. At this rate, prisons face a major obstacle in proceeding with executions.
This shortage has caused states to seek new cocktails for their lethal injections. The problem? States keep botching executions, leading to more negative press on the matter. It’s only a matter of time before society hears one too many disturbing stories about an execution gone awry.
If adequate drugs are unavailable, new alternatives in some states now exist, Oklahoma now allows using nitrogen gas asphyxiation. Tennessee will revert to the electric chair, and Utah will now approve reincorporating the firing squad if faced with a shortage.
You’re probably wondering… but who cares? Aren’t they just getting what they deserve? It is true that we are talking about how we punish those considered to be the worst of the worst in our society. But there is a problem. We have had over 150 people exonerated from death row, which forces us to wonder how many innocents have been executed. Additionally, there are serious concerns about the conditions on death row and whether death row itself is even more inhumane than the actual executions.
Nevada’s Future Death Chamber
Currently, a new execution chamber is being built at the Ely State Prison thanks to a capital improvement bill signed by Governor Sandoval last year. Nevada expects to use the drugs midazolam and hydromorphone to administer a lethal injection. Midazolam is an anti-anxiety medication meant to sedate an individual into a coma-like state before the hydromorphone is given. The problem is that Pfizer manufactures these medications and, like many other pharmaceutical companies, it has recently restricted the distribution of such drugs to ensure they do not end up in the hands of state correctional facilities for use in lethal injections.
Although the Nevada Department of Corrections claims to have a sufficient stockpile of medications, the lingering question is whether the use of such medications will remain constitutional by the courts. Last year, the U.S. Supreme Court in a 5-4 opinion ruled in favor of continuing the use of midazolam in executions; however, many critics still argue against the use of midazolam because it does not guarantee the inmate will be unconscious prior to the administration of subsequent drugs…thus leading to a squirming and anguishing inmate during a prolonged execution.
It’s only a matter of time before more challenges are brought against using certain drugs in executions or even against the lethal injection entirely. Many states have already done away with capital punishment and now, with society screaming against lethal injection, Nevada may soon have to remodel its new death chamber for whatever the next form of capital punishment will be. With such clout on the future of lethal injections, combined with the time and resources required to finally get an inmate inside the chamber, it makes you wonder if our new chamber will ever be used…or, whether it should.
For more on capital punishment in Nevada follow us online for
exclusive interviews with Hon. Judge Donald Mosley (Ret.) & criminal defense attorney Tom Pitaro, Esq.