Two death row inmates force a moratorium on capital punishment.

By: John J. Miller

A BOUT 7 o’clock on the morning of April 9, 1990, Tina Earley was dropping off her husband, Edward, at a dry- cleaning business they owned in Lexington, Ky., when a car driven by Thomas Clyde Bowling slammed into her vehicle.

For reasons that remain unclear, Bowling jumped out of his car and shot the Earleys killing them both and wounding their two-year-old son. Then he drove away. Within a couple of days, the police arrested Bowling for the crime.

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About two years later, not far from the scene of the Earley murders, sheriff Steve Bennett and deputy sheriff Arthur Briscoe approached the cabin of Ralph Baze to arrest him on multiple warrants. Baze chose to resist. He fired three shots into the back of Bennett, killing him. Briscoe tried to get away, but he failcd—Baze shot him twice, again in the back. Briscoe still wasn’t dead, so Baze put a fatal bullet into his brain.

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Juries placed both Bowling and Baze on death row. But a series of legal maneuvers has kept Kentucky from carrying out their sentences. Most recently, they have claimed a constitutional right to “an anesthetized death” that is “essentially painless”—something they say Kentucky can’t provide because it executes via lethal injection, as does nearly every state that employs the death penalty.

Their case is currently before the Supreme Court, with a ruling expected by June, 2008. There hasn’t been a single execution in the United States since a few days after the justices’ September decision to take up the case — judges at all levels, including the Supreme Court itselt~ have issued stays of execution whenever death- row inmates have requested them.

The result is the first nationwide halt to capital punishment since the 1970s. This moratorium could continue indefinitely if the court decides that murderers shouldn’t have to confront the remote possibility that they will suffer briefly as they die.

The case, Bae v. Rees, boils down to an interpretation of the Eighth Amendment and specifically the meaning of its ban on “cruel and unusual punishments.”

When the Founders wrote these words into the Constitution, their intent was to forbid the most gruesome measures: beheading, mutilation, drawing and quartering, burning at the stake, and so on. Over time, the words of the Eighth Amendment have been taken as a restriction on torture and lingering death.

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For a century, execution meant hanging—a form of capital punishment that often involves a near-instant death if the spinal cord is broken, or a minute or two of strangulation before unconsciousness arrives.

Toward the end of the 19th century, the noose gave way first to the electric chair and then to the gas chamber, in the belief that they were more humane.

Today, however, no state relies on hanging or the gas chamber exclusively, and only Nebraska uses the electric chair. (A handful of states allow the condemned to choose these methods; the last hanging occurred in Delaware in 1996.)

Just as the gas chamber replaced the gallows, older methods of execution have been supplanted by lethal injection, once again because it is just regarded as more humane, swifter, less painful, and more certain. As a form of execution, it’s a throwback to old-fashioned poisoning, but it’s a far cry from Socrates and his hemlock.

Lethal injection uses a three-drug cocktail that anesthetizes, relaxes, and finally kills. Bowling and Bazc can’t claim that lethal injection is unusual, because 36 states employ it. But they would like the Supreme Court to find that it is cruel. The justices have a history of restricting the death penalty.

In 1972, they essentially banned capital punishment because of what they regarded as its arbitrary application. (In the aftermath, Arkansas used its electric chair in a prison barber shop, according to The Death Penalty: An American Histon; by Stuart Banner.)

Over the next four years, however, many states passed sentencing guidelines—and the Supreme Court allowed capital punishment once more. The court also has imposed limits: No one faces the executioner for rape, kidnapping, or crimes committed as minors, and the mentally retarded are exempt no matter what they have done.

Bowling and Baze would like the court to create a new prohibition on the grounds that lethal injection as currently practiced may not always kill with perfect painlessness.

Their assertion highlights the controversial phenomenon of “anesthesia awareness,” a condition in which patients are supposedly anesthetized for a procedure but in fact can feel pain and aren’t able to communicate their distress to doctors.

 In the case of a three-drug lethal injection, it would mean that the first drug (an anesthetic called sodium thiopental) fails to work but the second (pancuronium bromide, a muscle relaxant) does its job and paralyzes the condemned as the third (potassium chloride) performs its grim function.

There is essentially no argument against lethal injection when it functions properly. During oral arguments on January 7, Chief Justice John Roberts and Justice Anthony Kennedy got the plaintiffs’ lawyer, Donald B. Verrilli Jr., to admit as much. “If there were a way to guarantee that the procedure worked every time, then we wouldn’t have substantial risk,” he said.

Yet death-penalty foes have claimed that lethal injections are often botched and that when they’re botched they’re cruel. The American Civil Liberties Union backs Bowling and Baze.

It has filed a brief on their behalf, writing. that current forms of lethal injection are “inconsistent with contemporary values and civilized standards of decency.”

The advocates of capital punishment have shown little sympathy for this line of argument. “It’s a last-ditch effort,” says Josh Marquis, the Democratic district attorney of Oregon’s Clatsop County. “To believe that a person who has committed the absolute worst crime should not suffer momentary discomfort is absurd.” Bill Otis, a former assistant U.S. attorney who supports capital punishment, has likened the legal strategy to the one pro-lifers adopted in their attempts to outlaw partial-birth abortion:

The opponents know that they can’t sell wholesale abolition to the country, so they’re trying to focus on a particular procedure in order to gain a little ground.” Capital punishment registers more public support than just about any other policy that is routinely deemed divisive. In a Gallup poll last October, 69 per-cent of respondents said that they favored the death penalty for people convicted of murder.

The debate over lethal injection seeks to shift the conversation away from the crimes of the condemned nobody’s fretting over the pain of Sheriff Briscoe—and endeavors to transform killers into victims, strapped into gurneys and awaiting pain. “We have to remember that the ultimate purpose of this procedure is to punish them for the exceptionally brutal crimes that they chose to commit,” says Kent Scheidegger of the Sacramento, California based Criminal Justice Legal Foundation.

One potential but flawed solution would be to require the presence of doctors at executions. They might ensure that the anesthetics are working as intended before the administration of further drugs, for instance. The problem is that doctors are professionally obligated to heal rather than to kill—the American Medical Association forbids its members to participate in executions . So does the American Society >of Anesthesiologists.

“This could have a chilling effect with patients, if they realize that their anesthesiologists can double as executioners,” says Orin Guidry, a Charleston, S.C., doctor who is a former president of the ASA. Last year in North Carolina, the state medical board threatened to strip the licenses of doctors who take part in executions. A judge stopped this move, but the ruling is under appeal, and points to the potential hazard of an inconclusive Supreme Court decision: expensive and time- consuming death-penalty litigation that might extend the current moratorium on capital punishment.

That could cost innocent lives. The familiar question of whether the death penalty is a crime deterrent has experienced a recent revival thanks to new analyses. In one sophisticated study that draws upon 25 years of FBI data, Roy D. Adler and Michael Summers of Pepperdine University have calculated that each execution correlates with about 74 fewer murders the following year.

If that number or anything approaching it is accurate, it would mean that obstructions to capital punishment are deadly.



February 25, 2008 (Pgs 28-30)

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