Justice

The Time of Suffering

Bill Moyers reflects on the culture of cruelty in American politics.

The Time of Suffering
A black man with hands outside the bars of a prison cell

(Credit: iStock)

Republican legislators in Mississippi are clamoring to add the firing squad, the electric chair and the gas chamber to their tool kit for killing prisoners on Death Row.

Disposing of inmates by lethal injection hasn’t been used in the state since 2012 because of lawsuits claiming it violates constitutional prohibitions against cruel and inhumane punishment, and because pharmaceutical companies have been curtailing the sale of the drugs needed to induce death. Now, with 47 people on Mississippi’s Death Row, some for decades, officials have itchy trigger fingers from waiting so long. Hence, the demand for an old-fashioned firing squad, electric chair or gas chamber. Perhaps, one day, even for the guillotine.

A small-town Baptist pastor named Andy Gipson, who doubles as a lawyer and triples as a state legislator, chairs Mississippi’s House Judiciary Committee and has successfully steered the bill to passage in his chamber. The Associated Press quotes him saying, “I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago and that person’s still waiting for the death penalty. The family is still waiting for justice.” Asked by a colleague who opposes capital punishment about “the time of suffering” an inmate would experience before dying by any of the three means of execution, Gipson said he did not know.

The number of executions in the United States has been dropping, but some states still practice it and still resort to lethal injection. Already this year there have been two such killings in Texas and one each in Virginia and Missouri. But every state considering it has to reckon with what happened in Alabama last Dec. 8 when Ronald Smith was put to death for the murder of a store clerk 22 years ago. The jury had recommended life imprisonment but the judge overrode their decision and on his own imposed the death penalty. The US Supreme Court deadlocked 4-4, allowing the execution to go forward.

It was a grisly affair. One newspaper account said Smith:

… Appeared to be struggling for breath and heaved and coughed and clenched his left fist after apparently being administered the first drug in the three-drug combination. At times his left eye also appeared to be slightly open.

A Department of Corrections captain performed two consciousness checks before they proceeded with administering the next two drugs to stop his breathing and heart.  The consciousness tests consist of the corrections office calling out Smith’s name, brushing his eyebrows back, and pinching him under his left arm.

Smith continued to heave, gasp, and cough after the first test was performed at 10:37 p.m. and again at 10:45 p.m. After the second one, Smith’s right arm and hand moved.

His “time of suffering?” At least 13 minutes.

An even more horrendous experience unfolded in Arizona in 2014 when it took the state almost two hours to finish off Joseph Wood, who had been found guilty of murdering an ex-girlfriend and her father 25 years before. His was the longest execution in American history. Experts said it should have been over in 10 minutes.

Arizona used a two-drug combination it had never before tried. Wood’s federal defender said it was “a failed experiment… horrible to watch.” Eyewitnesses said Wood gasped more than 600 times as the state injected into his veins 14 times the planned dosage. One witness told NBC News it was like “the movements a fish makes when it’s taken out of water.” The network quoted reporter Troy Hayden: “At a certain point you wondered if he ever was going to die.”

The noted lawyer Mark E. Haddad recently wrote about the Wood execution for The Hill. He is co-chair of the Supreme Court and Appellate Practice Group at Sidley Austin LLP, which is counsel to the plaintiffs in a case challenging several parts of the lethal injection process in Arizona.

“The reality of an execution is uncomfortable,” Haddad writes. “Nearly all of us look away, trusting that the executions conducted in America will be humane. We shouldn’t.”

He reminds us that the Supreme Court has long acknowledged the idea that inflicting torturous pain during an execution would be unconstitutional: “But in Glossip v. Gross, a deeply divided 5-4 decision issued in 2015, the court concluded it was unable, due to procedural limits on its scope of review, to strike down a three-drug execution protocol that in reality does inflict such pain.

That protocol — one in which a state employee first injects the prisoner with a sedative rather than anesthesia, then injects a drug that paralyzes the prisoner’s body, and finally injects a lethal drug that stops the heart — is inherently and deeply flawed.

Because the sedative — a benzodiazepine known as midazolam — cannot sustain deep unconsciousness the way anesthesia can, it does not prevent the prisoner from experiencing either the feeling of suffocation that the second, paralyzing, drug inflicts, or the feeling of liquid fire that follows the large and fatal dose of the third heart-stopping drug.

The second drug — the paralytic — also has one other notable and insidious side effect: By preventing the prisoner from vocalizing or moving in response to pain, the paralytic drug conceals his suffering from public view, and thereby helps disguise the brutal reality that using these lethal drugs without first providing anesthesia imposes excruciating pain.

Arizona Attorney General Mark Brnovich told Bill Whitaker of 60 Minutes that he saw nothing wrong in the way Wood’s execution was carried out.

Bill Whitaker: It took almost two hours. That’s the longest execution in US history?

Mark Brnovich: At the end of the day, though, the independent report, the medical examiner, all concluded that Mr. Wood was sedated the entire time, was unresponsive to stimuli and he was feeling no pain whatsoever.

Bill Whitaker: But, how do you know that?

Mark Brnovich: Well, obviously… at the end of the day —

Bill Whitaker: Were there sensors? Was anybody taking brain s— you know, how do you know he wasn’t feeling pain?

Mark Brnovich: Ultimately, you can’t know, because the person’s dead.

Bill Whitaker: So if two hours isn’t too long, what is? Three hours? Would that cause alarm? Four hours?

Mark Brnovich: I think two hours, three hours, four hours, when someone’s on the death gurney and they’re unconscious, I don’t think they’re worried about the time. In this instance it happened to take longer but that does not mean that it was botched.

Bill Whitaker: What should you call it?

Mark Brnovich: I would call it that you had somebody who is a heinous killer that murdered people in cold blood and eventually received justice.

What Joseph Wood’s excruciating and prolonged death demonstrated, however, is how extreme justice becomes extreme injustice.

Haddad writes that

regardless of one’s views about the death penalty, and notwithstanding limitations on execution drug sales, there is no excuse for a torturous execution.

Burning someone at the stake would not become constitutional just because the state had no humane alternative. Yet several states continue to use a midazolam protocol that paralyzes and then burns the prisoner alive from the inside, while failing first to provide anesthesia.

Arizona is no longer one of them. Haddad reports that without abandoning executions or acknowledging wrongdoing, Arizona has become

“the first state to commit itself irrevocably not to use midazolam or any other benzodiazepine in a lethal injection ever again. On Dec. 22, 2016, the US District Court for the District of Arizona entered an order that binds the state to its decision. Upon “any notice” that the state is contemplating changing its mind, the court will enjoin it. To carry out future executions, Hadded notes, “the state will have to look to other lethal injection protocols that do not involve a risk of torturous pain, or else will have to ask the legislature to authorize another means of execution.

That may strike you as a very tiny step, especially if, as I do, you oppose the death penalty as a holdover from our barbarian past. But as we now confront a harsh new order of things — a political culture reeking of he-man bravado, jutted-jaw machismo and a crude and cruel pleasure in giving pain — it is important we miss no chance, however small, to take the measure of and ameliorate the time of suffering within our reach.

Bill Moyers

Managing Editor

Bill Moyers is the managing editor of Moyers & Company and BillMoyers.com.