Lethal Injection in Crisis"On April 29, 2014, Oklahoma prison officials administered an untested mixture of three drugs to Clayton Lockett, a convicted murderer and rapist” (Greenberg 1). “The execution went immediately and terrifyingly wrong. Following administration of the first drug, Lockett, obviously conscious, started to writhe and groan, and then went into convulsions” (1). This is one example of the many botched executions that have occurred in recent history. With the possibility of an execution going as badly as Lockett’s, we must ask if we are violating the US constitution. The 8th amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (amend. XIII). considering the possibility of an execution going as badly as Lockett’s, we must ask if we are violating this amendment. I will argue that the California push for the repeal of lethal injection over reforming the practice, as an immediate solution that would save the state millions, and provide for the closure of hundreds of legal cases.
A few current problems facing California lethal injection
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A Problem in History
The history of lethal injection in California may reveal possible causes of the current situation. In 1972 the reinstatement of the death penalty was the first step towards lethal injection. From that event, a combination of propositions and court cases extend the appeal process of death penalty cases. Many court cases have shown a constant discussion of the constitutionality of the death penalty. The propositions that have passed and failed show the public desire to maintain the death penalty in the state of California. The blocked execution of Michael Morales directly effects regarding the lack of executions since that date. The timeline of events will build to show a great financial and legal toll taken by the state. Figure 2, pictured below, shows the specific events I will review and discuss.
Carol Steiker is a professor of law at Harvard University. She researched the similarities and differences between trends in mass incarceration and capital punishment. In her article “The Death Penalty and Mass Incarceration: Convergences and Divergences” she states, “Several polices central to the rise of mass incarceration have helped to promote the retention of capital punishment at the abstract level of theory and discourse” (194). Carol Steiker showed attitudes towards crime and punishment shifted to a more swift and severe approach, “In this atmosphere, the death penalty became a particularly potent symbol, offering politicians a way to signal in powerful shorthand their claims of toughness” (192). Politicians pushed for severe punishments as a way evidenced by the reinstatement of the death penalty.
The political push for capital punishment the 60’s continued on into the 70’s. In 1972 California passed proposition 17 which amended the California constitution to state,
“The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article I, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution” (CA Const. Art. 1 Sec. 27.).
This proposition allowed the use of the death penalty in California, as well as the stance that the death penalty was seen as constitutional and not “cruel and unusual.” Death sentences were given and the convicted began to appeal the cases. Soon after, a Proposition in California aimed to create an automatic appeal process for death penalty sentences.
On November 1978, Proposition 7 passed in California, which created automatic appeals on death penalty cases, “cases in which the death penalty has been decreed are automatically reviewed by the California Supreme Court” (par. 19.). The automatic review created a system where every death sentence would be reviewed by the California Supreme Court. This is one cause of court delays in the appeal process. Scott Howe is a researcher at Chapman University School of law who investigated the severe backlog of cases to be heard by the courts. Howe observed that “death sentences have been generated in the trial courts at a much greater rate than they have been resolved on direct appeal” (1452). With more death sentences being assigned than appeal cases closed, the court backlog and appeal time will only increase.
“In October 1994, a U.S. District judge, ruled the use of cyanide gas was cruel and unusual punishment and barred the state from using that method of execution” (CA Dept. Corrections par. 25). Cyanide gas was determined to be cruel and unusual on the basis of asphyxiation. With the removal of gas chambers, lethal injection became the primary form of execution in the state. The appeals process continued on and death penalty sentences showed no signs of slowing. All executions would come to a halt in 2006 when, condemned inmate Michael Angelo Morales’ execution was stayed because of his claim that California’s administration of its lethal injection protocol would subject him to an unnecessary risk of excessive pain and violate the Eighth Amendment” (par. 27). This court case created a de facto moratorium on the death penalty in California until the implementation can be “fixed.” Since this date there have been zero executions administered. While no executions have taken place, the death sentence has been continuous in its use as a verdict. This has proven to only add to the backlog of court cases to be heard by the California Supreme Court. Scott Howe observed the increase in death penalty sentences, such as “In 2009, California trial courts imposed twenty-nine new death sentences and, in 2010, there were thirty-three” (1462). A court case in Kentucky would give life back to capital punishment around the country.
In 2008, Kentucky Supreme Court heard a case, Baze v. Rees, involving a single drug lethal injection protocol. Deborah W. Denno is a lawyer writing for the Georgetown law review. She took an extensive look at the court case in Kentucky and the effects it had on the country. The belief was this ruling would increase executions, yet as Denno states, “some predicted that there would be a surge of executions because the de facto moratorium had created a backlog of death-row inmates. That prediction was never realized” (1345). She attributes the falling numbers of executions to public opinion due to, “discoveries of innocence among death-row inmates, a reduction in the number of individuals eligible for execution, racial disparities, botched executions, or other reasons, the courts and the public have shown more skepticism of the capital punishment process” (1345). After an increase in court cases, a new problem arose to challenge lethal injection, a drug shortage.
The anesthetic drug used lethal injection, called sodium thiopental, is facing an availability shortage. Ty Alper is a Clinical Professor of Law at the U.C. Berkeley School of Law, his analysis of the drug shortage reveals how the European Union was able to halt executions across the country. The EU has a regulation, which “prohibits trade of “goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or Punishment” (Alper 28). The distribution of thiopental was, by Alper’s research, manufactured by “Dream Pharma, a small wholesaler that operated out of the back room of a driving school on the outskirts of London. This imported thiopental was not approved by the U.S. Food and Drug Administration” (30). Not only was the drug illegally brought into the country, it was not approved for use. This creates not only an ethical issue, but an international issue as well. The result was “the UK government passed an export control on thiopental,” therefore creating a shortage of the anesthetic.
The political push for capital punishment the 60’s continued on into the 70’s. In 1972 California passed proposition 17 which amended the California constitution to state,
“The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article I, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution” (CA Const. Art. 1 Sec. 27.).
This proposition allowed the use of the death penalty in California, as well as the stance that the death penalty was seen as constitutional and not “cruel and unusual.” Death sentences were given and the convicted began to appeal the cases. Soon after, a Proposition in California aimed to create an automatic appeal process for death penalty sentences.
On November 1978, Proposition 7 passed in California, which created automatic appeals on death penalty cases, “cases in which the death penalty has been decreed are automatically reviewed by the California Supreme Court” (par. 19.). The automatic review created a system where every death sentence would be reviewed by the California Supreme Court. This is one cause of court delays in the appeal process. Scott Howe is a researcher at Chapman University School of law who investigated the severe backlog of cases to be heard by the courts. Howe observed that “death sentences have been generated in the trial courts at a much greater rate than they have been resolved on direct appeal” (1452). With more death sentences being assigned than appeal cases closed, the court backlog and appeal time will only increase.
“In October 1994, a U.S. District judge, ruled the use of cyanide gas was cruel and unusual punishment and barred the state from using that method of execution” (CA Dept. Corrections par. 25). Cyanide gas was determined to be cruel and unusual on the basis of asphyxiation. With the removal of gas chambers, lethal injection became the primary form of execution in the state. The appeals process continued on and death penalty sentences showed no signs of slowing. All executions would come to a halt in 2006 when, condemned inmate Michael Angelo Morales’ execution was stayed because of his claim that California’s administration of its lethal injection protocol would subject him to an unnecessary risk of excessive pain and violate the Eighth Amendment” (par. 27). This court case created a de facto moratorium on the death penalty in California until the implementation can be “fixed.” Since this date there have been zero executions administered. While no executions have taken place, the death sentence has been continuous in its use as a verdict. This has proven to only add to the backlog of court cases to be heard by the California Supreme Court. Scott Howe observed the increase in death penalty sentences, such as “In 2009, California trial courts imposed twenty-nine new death sentences and, in 2010, there were thirty-three” (1462). A court case in Kentucky would give life back to capital punishment around the country.
In 2008, Kentucky Supreme Court heard a case, Baze v. Rees, involving a single drug lethal injection protocol. Deborah W. Denno is a lawyer writing for the Georgetown law review. She took an extensive look at the court case in Kentucky and the effects it had on the country. The belief was this ruling would increase executions, yet as Denno states, “some predicted that there would be a surge of executions because the de facto moratorium had created a backlog of death-row inmates. That prediction was never realized” (1345). She attributes the falling numbers of executions to public opinion due to, “discoveries of innocence among death-row inmates, a reduction in the number of individuals eligible for execution, racial disparities, botched executions, or other reasons, the courts and the public have shown more skepticism of the capital punishment process” (1345). After an increase in court cases, a new problem arose to challenge lethal injection, a drug shortage.
The anesthetic drug used lethal injection, called sodium thiopental, is facing an availability shortage. Ty Alper is a Clinical Professor of Law at the U.C. Berkeley School of Law, his analysis of the drug shortage reveals how the European Union was able to halt executions across the country. The EU has a regulation, which “prohibits trade of “goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or Punishment” (Alper 28). The distribution of thiopental was, by Alper’s research, manufactured by “Dream Pharma, a small wholesaler that operated out of the back room of a driving school on the outskirts of London. This imported thiopental was not approved by the U.S. Food and Drug Administration” (30). Not only was the drug illegally brought into the country, it was not approved for use. This creates not only an ethical issue, but an international issue as well. The result was “the UK government passed an export control on thiopental,” therefore creating a shortage of the anesthetic.
A failed opportunity On the November ballot in 2012, Proposition 34 sought to end the death penalty in California. The proposition was supported by the Catholic bishops in California. Prop 34 was “an initiative that would replace the state’s death penalty with the sentence of life imprisonment without the possibility of parole” (California Catholic Conference par. 1). The Huffington Post reports, “the movement to abolish capital punishment gained just 47.3 percent of the vote” (par. 1). With voters upholding capital punishment in California, the possibility of removing the death penalty appears slim.
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What Are Our Options?
There are two solutions moving forward that I have reviewed and considered. The first solution to consider is the outright abolition of the lethal injection. The justification for this issue is it would immediately put an end to all appeal cases, as well as remove the possibility that we may violate the 8th amendment. This solution is heavily supported by the American Civil Liberties Union. The alternate solution proposed by the California Department of Corrections and Rehabilitation, is to introduce a single drug injection policy. This solution is gaining momentum in California. Other states have already changed to a solution. I will argue for my suggested solution based on the cost, causality and ethics. Faith will also be a key factor in looking at solutions. Jesus states that the second most important commandment of God is “You shall love your neighbor as yourself” (Matt. 22.39). I will look at the solutions and show how repeal of lethal injection is the better of the two.
Solution 1: Finding a new way to execute The first solution is the reform of the lethal injection protocol. Currently in California the California Department of Corrections and Rehabilitation have recently proposed a regulation change of the lethal injection protocol. The reformed protocol aims to respond to allegations of 8th amendment violations; it claims to “Establish a lethal injection protocol …. To ensure California’s execution protocols comport with the Eighth Amendment” (2). It also provides for a solution to the drug shortage issue, “any one of four barbiturates listed in the regulations, in a 7.5 gram dose, may be selected as the chemical which will be used in the execution” (3). The protocol reform aims to correct many of the issues of lethal injection. The first question of this solution is the cost.
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The cost of the new protocol is broken down into sections. The total combined costs of a single execution are determined to be $186,886 (Notice of Change to Regulations 4). The Cost of annual training will be $66,740 (4). Ignoring the annual training, to execute all 747 inmates on death row would cost $139.6 million dollars. This cost does not include the financial cost of the many appeals yet to be heard by the Supreme Court. Scott Howe of Cardozo Law review, whom I spoke of earlier, estimated that California has spent “more than $184 million in 2009 alone” on the death penalty (1513). Considering the amount spent per year on the death penalty, the cost of reform adds no financial burden on the state, however it also fails to remove and financial burden. This solution relies on the other benefits it may offer.
The reform of lethal injection claims to comply with the 8th amendment. The argument against lethal injection mostly relies on the argument of humaneness and the 8th amendment. Sara Colón is a doctoral graduate from Berkeley, her extensive look at capital punishment in California aims to prove lethal injection as a violation of the constitution. Her argument revolves around the Supreme Court ruling in the case Baze v. Rees. Her quote of the ruling is as follows: “the alterative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain” (qtd. in Colón 1384). She interprets this as, ““if the more painful alternative does not have more or different penal value than the less painful alternative, the more painful alterative is violative of the Eighth Amendment” (1384). The new protocol gives the option for various different chemicals to use in the execution to fit this description. Until the new chemicals are tested, we must wait to see if they are effective and free of pain.
The reform of lethal injection claims to comply with the 8th amendment. The argument against lethal injection mostly relies on the argument of humaneness and the 8th amendment. Sara Colón is a doctoral graduate from Berkeley, her extensive look at capital punishment in California aims to prove lethal injection as a violation of the constitution. Her argument revolves around the Supreme Court ruling in the case Baze v. Rees. Her quote of the ruling is as follows: “the alterative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain” (qtd. in Colón 1384). She interprets this as, ““if the more painful alternative does not have more or different penal value than the less painful alternative, the more painful alterative is violative of the Eighth Amendment” (1384). The new protocol gives the option for various different chemicals to use in the execution to fit this description. Until the new chemicals are tested, we must wait to see if they are effective and free of pain.
Solution 2: Removing lethal injection from the picture The second possible solution is a new initiative seeking addition to the 2016 general election ballot. The initiative, known as the “Justice That Works Act of 2016,” is led by Mike Farrell, he is most known as an actor on the TV series M*A*S*H. He has since focused on fighting capital punishment. His proposed initiative declares the intent as follows:
“To end California's costly and ineffective death penalty system and replace it with a commonsense approach that sentences persons convicted of first degree murder with special circumstances to life imprisonment without the possibility of parole so they are permanently separated from society, and required to pay restitution to their victims” (“Justice That Works Act” sec.3) The initiative seeks to “eliminate the risk of executing an innocent person” as well as “end the decades-long appeals process” (sec. 3). This proposal has the possibility to solve many of the issues facing lethal injection. I present this solution not as an argument against capital punishment, but as an option that would provide the state a solution to the lethal injection problem. |
The “Justice That Work Act” is capable of saving California millions. The initiative claims to save the state over $100 million dollars a year (sec. 2). Scott Howe reviewed the costs of lethal injection in 2008 and found that, “$ 126.2 million more than the annual costs that would accrue if the death penalty were immediately abandoned in favor of sentences of life imprisonment without parole” (1466). Howe looked at the overall cost of the death penalty, finding “taxpayers have spent more than $ 4 billion on the California death penalty since 1978” (1512-1513). The future costs saved by this initiative are substantial. If the initiative were to pass, it is important to look at the causation of repeal.
The immediate effect of the repeal of the lethal injection would be the end of all pending appeal cases. Sara Colón took an extended look at the court delays in California. Through her findings, she says, “It would seem …. That most of California's extra delays are not caused by the defendants' abuse of the system but rather by problems inherent in the state's system” (1393). By removing the death penalty from the picture, the inherent problems can be avoided entirely. Assessing the effect of repeal we can see a quick solution to the many legal issues in the state.
Which solution provides the greatest chance of success?
Ethical analysis should take place in deciding any solution. The humaneness of lethal injection is an important topic on the subject of repeal or reform. Considering repeal, the possibility of “cruel and unusual” punishment is a constant risk for lethal injection. This is evidenced by the study of Teresa A. Zimmers and her researchers. The team discovered that “even if lethal injection is administered without technical error, those executed may experience suffocation” (653). If even in the case of a properly administered injection may lead to suffocation, the risk should be seen as too great to take.
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Comparing the two solutions to one another, it becomes clear which one will prove to be a more comprehensive solution to the problem in California. The Cost benefit of the repeal of the death penalty provides a vastly greater relief to the state than the slight increase that the reformed lethal injection would remove all appeal cases that are tied up in the California Supreme Court. The new injection protocol would only marginally end some of the 8th amendment cases. The legal benefit of removing the lethal injection would be substantially more effective than reform. Ethics is where the reform method may compete with the repeal initiative. As shown in the history of lethal injection, the method has repeatedly been deemed constitutional on many different grounds. At this point it seems unlikely that the Supreme Court will end the use of lethal injection. Even though many perceive lethal injection as humane, I argue that the risk of a botched execution or chemical error is reason enough to deem them inhumane.
The money saved is greater than that of reform. The effect on litigation cases in California would be significantly improved by abolition over reform. The possibility of a botched execution is always a threat with lethal injection. With the removal of the death penalty, we could rest easy as a country knowing we are not the ones who put others through tortuous scenarios. The benefits of the repeal of the death penalty would be immediate while, reform of the lethal injection protocol would still require appeals and a lengthy approval process. The repeal of lethal injection would not mean the release of the death row inmates, they would be given life sentences and justice will have been served.
The lack of executions in California shows the failures of lethal injection in the state. “Since 1972 we have only executed 13 of the 747 inmates on death row and 24 inmates have committed suicide (History of Capital Punishment in California). Death row inmates have been more successful in killing themselves than the state of California with executions. With the lack of executions carried out, it is clear to me that as a state it would be better if we washed our hands of this situation and moved on to other issues that need our attention. From the words of Catherine Langford who researched the ethics of lethal injection, we should agree that “the death penalty experiment has failed and decide to no longer tinker with the machinery of death” (169).
The money saved is greater than that of reform. The effect on litigation cases in California would be significantly improved by abolition over reform. The possibility of a botched execution is always a threat with lethal injection. With the removal of the death penalty, we could rest easy as a country knowing we are not the ones who put others through tortuous scenarios. The benefits of the repeal of the death penalty would be immediate while, reform of the lethal injection protocol would still require appeals and a lengthy approval process. The repeal of lethal injection would not mean the release of the death row inmates, they would be given life sentences and justice will have been served.
The lack of executions in California shows the failures of lethal injection in the state. “Since 1972 we have only executed 13 of the 747 inmates on death row and 24 inmates have committed suicide (History of Capital Punishment in California). Death row inmates have been more successful in killing themselves than the state of California with executions. With the lack of executions carried out, it is clear to me that as a state it would be better if we washed our hands of this situation and moved on to other issues that need our attention. From the words of Catherine Langford who researched the ethics of lethal injection, we should agree that “the death penalty experiment has failed and decide to no longer tinker with the machinery of death” (169).
What Can You Do to Help?
The issue of lethal injection is an important social issue that needs attention. In the Bible it says “Beloved, if God so loved us, we ought also to love one another” (1 John 4.11). The bible and Jesus constantly try to remind us that we are to love one another. When one of us commits such a heinous crime, such as the rape and murder of another, many people resort immediately to vengeance and the greatest punishment of all. As people of faith, it is important to follow the words of Jesus, “Judge not, and you will not be judged; condemn not, and you will not be condemned; forgive, and you will be forgiven” (Luke 6.37). Finding a solution for lethal injection will help us grow as a state as well as people of faith.
There is a chance to make a difference regarding lethal injection. Initiative 15-0066, known as “The Justice That Works Act of 2016,” has the possibility of ending lethal injection in California by removing the death penalty. Important initiatives such as this depend on public action to move forward. This initiative needs over 300,000 signatures to become a proposition in the upcoming election. When you are approached by a petitioner for upcoming elections, listen to what they have to say. When you hear about “The Justice That Works Act,” sign the initiative and help end a failing system. There is a donation site where you may be able learn more about the solution.
There is a chance to make a difference regarding lethal injection. Initiative 15-0066, known as “The Justice That Works Act of 2016,” has the possibility of ending lethal injection in California by removing the death penalty. Important initiatives such as this depend on public action to move forward. This initiative needs over 300,000 signatures to become a proposition in the upcoming election. When you are approached by a petitioner for upcoming elections, listen to what they have to say. When you hear about “The Justice That Works Act,” sign the initiative and help end a failing system. There is a donation site where you may be able learn more about the solution.