Dissertation on Capital Punishment

Dissertation on Capital Punishment

Part 1

As a general matter of principal the Civil Law adjusts competing claims between litigants by award of compensatory damages aimed at restoring an aggrieved Plaintiff to a position - as far as money can restore - as if the tort or cause or causes of action complained of whether covered by statute or precedent or otherwise did not take place. 
Criminal Law, on the other hand, is based upon judicial finding of criminal guilt and adjudication on punishment.  That punishment can be retribution based on religious philosophy “eye for an eye and a tooth for a tooth” which is often the rationale behind mandatory penalty for murder.  Out of the 52 States that makes the Union of the United States of America, 32 States still have and practice the death penalty.  For a good century and half the practice of putting convicted felons (presumably after exhausting all avenues of appeal) to death was either by firing squads or gas chambers.  That was before the European multinational pharmaceutical companies saw the opportunity to cash in and make a deal with prison authorities to supply them with the “humanely correct injectable mix of drugs”.  The correct injectable mix that would do the job as painlessly as possible, according to the chief medical examiner of the State of Oklahoma, Jay Chapman, is sodium thiopental, pancuronium bromide and potassium chloride all in higher doses then what is normally used for general anesthesia. 

This correct injectable mix formula was never tested, or given the nod by pharmacological review panel, or medically monitored or commented upon.  After the introduction and use of the injectable mix by Oklahoma, all 32 States followed the example of the State of Oklahoma.  All wanted to be seen equally compassionate letting convicted felons breath last gulp of air as humanely as a cocktail combination of drug would allow.  That was up until the European Commission raised its eyebrows on the multinational pharmaceutical companies in 2011 and cut of supply to the prison authorities and those acting on their behalf.   What followed was haphazard rush to seek substitute from drug manufacturers in developing countries with little, if any control of their compounding pharmacies.  The humanly correct injectable mix became experimental and subject to the whims of the Governors of prisons in the 32 American States and those advising them – medicos, pharmacists, charlatans, or otherwise.   For good 2 years, between late 2011 and December 2013, we know little about the last moments in the lives of those who walked to the execution chamber of the various prisons, strapped to the gurney and injected with the substitute generic humanely correct injectable mix formula.  However, from what we now know the last moment of those convicted felons could not have been much better than the last moments of Michael Lee Wilson, injected in Oklahoma on 9 January 2014, Dennis McGuire injected in Ohio on 16 January 2014, and Clayton Lockett injected in Oklahoma on 29 April 2014. 

Michael Lee Wilson

The supposedly correct injectable mix used on Wilson and McGuire was combination of phenobarbital, vecuronium bromide, and potassium chloride.  That used on Lockett was midazolam, verconium bromide, and potassium chloride.  For considerable number of minutes after being injected Wilson said "I feel my whole body burning".

In the case of McGuire some 5 minutes after being injected he tried to get free and for considerable number of minutes later he kept making attempts to get free and made loud sounds and gurgling noises as if drowning in his own fluid.  Being generic copy of the original formula the midazolam was supposed to cause unconsciousness. It did not. Lockett opened his eyes and started mumbling and thrashing against the gurney.  Shocked in disbelief the warden sought to have the execution stayed and resumed at a later date. But before the formalities of such a procedure could be put into legally binding effect some 45 minutes after being injected with the humanely correct injectable formula Lockett died of a heart attack!  When the media got hold of these barbaric executions there was outcry throughout the USA, even President Obama calling the execution “deeply disturbing”.

The Eighth Amendment to theConstitution of the United States of America bans cruel and unusual punishments.  Whether the cases of Wilson, McGuire, and Lockett find their way to the Supreme Court to test the Eighth Amendment is at best a moot point. Nevertheless these inhumane and cruel executions – and presumably countless other death row prisoners executed between late 2011 and December 2013 – presents rare opportunity to humane lawyers, thinkers and advocates of human rights to mount a case that could ultimately results in the abolition or stay of the death penalty.

In Part II I will take a closer look at the pharmacology of the various humane injectable formula used by the 32 US States and applicable case law decided by the Supreme Court of the United States of America dealing with the Eighth Amendment and Capital punishment.

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