Lethal Objection

Lethal Objection
The moratorium on California executions will be in effect for at least another year. The attempt to execute Michael Morales influenced the decision to extend the moratorium until a new execution protocol is approved. A 42 page manual was introduced and public comment was recorded at a Sacramento hearing on June 30, 2009. The state has a year to accept, reject or amend the newly proposed lethal injection protocol. Morales was given a date for execution on Valentine’s Day 2006 and made his final phone calls and ate his last meal. Minutes before the procedure was to begin, a delay was announced when the state ruled that a medical professional was required to supervise the execution by lethal injection.

The American Medical Association and the American Society of Nurses consider it unethical for their members to participate in an execution. Two anesthesiologists were hastily recruited and the execution was then on again. When it became clear to the two physicians exactly what role was expected of them in administering the lethal injection, they both resigned. After fifteen hours on death watch, a shaken Morales was returned to his cell, where he remains. Ironically after the failed execution attempt, some testimony in his trial has been proven not credible and half of the members of Morales’ jury and the presiding judge have all appealed to Governor Schwarzenegger for his clemency.

One of the objectives for the new protocol is to minimize the role of medical professionals in state executions. It is not easy to find a physician to assist in an execution although most are offered full anonymity and legal immunity. There is a small loophole that a physician may be present only after the inmate is pronounced dead, to officially certify the death, but both medical professional organizations state clearly that their members are to have no participation in executions other than this final certification.

Some of the physicians, who disregard the AMA policy and assist in executions, feel that given the inevitability of execution, it is humane to provide as much comfort as possible. Inserting an IV can be tricky even when performed by a skilled practitioner on a normal patient. Death row inmates are often former drug users, obese, or extremely muscular. All of these conditions make finding a viable vein challenging, even for experienced clinicians. I can’t imagine how the new protocol will include a safe and quick method for the placement IVs by anyone other than a medical professional.

After the IVs and lines are in place, three drugs are administered in order. The first is sodium thiopental, a very short acting barbiturate. Pencronium, the second drug and the most controversial component of the triumvirate, is administered second. This is a muscle relaxant strong enough to induce complete paralysis. Some feel that this is an unnecessary and dangerous addition, used only for aesthetic affect as it prevents twitching, grimacing and contortions, sparing witnesses the sight of death’s pain. The paralysis culminates with the lungs. The patient appears completely serene, but if the third drug, potassium chloride, which stops the heart, doesn’t act quickly enough, the cause of death will be agonizing asphyxiation. A California judge in the Morales case examined prison evidence logs which indicate that out of eight inmates executed, six had suffered suffocation.

The Morales case reopened a dialogue about the ethics of medical personnel participating in executions. It also raised two challenges to the 8th amendment’s protection against cruel and unusual punishment with regard to the common incidence of painful asphyxiation and also the psychological torture inflicted on Morales’ by his “mock execution.” The court agreed that a revised protocol is necessary but also ruled that while Morales was subjected to profound psychological stress, because there was no intention to torture him, his experience did not constitute torture. Does intention have more weight than experience in the determination of what is or is not torture?

Our execution chambers seem clinical and efficient but the truth is, even if you throw in Texas and Oklahoma, we do a lot more appendectomies than lethal injections in this country and I was surprised to find out exactly how higgledy piggledy the process has been since the death penalty was reinstated in 1976. The Ohio execution of Christopher Newton in 2007 required ten attempts and took over two hours.

Atul Gawande has written for the Journal of the AMA (Volume 354:1221-1229; March 23, 2006; Number 12) about physician participation in executions.
"When Law & Ethics Collide: Why Physicians Participate in Executions"http://content.nejm.org/cgi/content/short/354/12/1221
Dr. Gawande had difficulty locating for interview physicians who’d assisted in executions. The doctors who did agree were very protective about anonymity and were conflicted about their participation in capital punishments. In many cases, doctors are asked casually by a neighbor or patient employed at a prison to certify death at an execution as a favor, Often though, physicians end up taking a more hands-on role as it becomes clear that if the procedure is left to a non-medical staff, there is the risk of subjecting the inmate to unnecessary pain and discomfort. If I were a physician I would be unable to participate in the taking of a life. If I were to be executed I would pray that there were a physician who felt otherwise.

The subject of race cannot be ignored in any discussion of the death penalty in this country. On San Quentin’s death row, 251 inmates are white, 239 are black and 143 are Latino. Of the approximately 205 death row inmates who were sentenced in Los Angeles, 98 are black, 54 Hispanic and 39 are white. Black people comprise less than 10% of the population of the state of California and of the city of Los Angeles. Nationwide, not only are black men twice as likely to receive a death sentence, the likelihood of someone being sentenced to death is also much greater if the victim of the murder is white rather than a member of a minority group.

I spoke with an investigator for the L.A. Public Defender’s office who works exclusively on death penalty appeals. He acknowledges the irrefutable evidence of racism in the meting out of the death sentence but also confirms that a very large percentage of death row inmates are mentally ill. Mental illness is often perceived by our society as a lack of character and not a medical condition. Mental health resources are inadequate in most communities and there is often stigma attached to partaking of the services that are available. With regard to the role of mental illness in death sentence appeals, he says, “This is one of the main battlegrounds on appeal. Was the defendant mentally ill in a way that explains his conduct in some way or generates some compassion toward him, or does he just have an ‘anti-social personality disorder’ (as the prosecution will argue)? Experts will testify for both sides. He killed and raped someone. Of course he's mentally ill. The question is whether he's the right kind of mentally ill, the kind that will get him some relief.” He concedes to that that most of the men on death row wouldn’t be there at all if there’d been some relief from poverty and broken families and emotional demons early on in their journeys.

Now some conservatives have gotten on the anti-death penalty bandwagon in the name of fiscal moderation. But with the determination to have our cake and eat it too, it seems inevitable that there will be voices that counter propose as an alternative to abolishing the death penalty, the reinterpretation of the constitution towards accelerating the wheels of justice and streamlining the appeals process. Think of the savings if we installed the leather straps right on the jury table.

Opponents of the death penalty are often accused of lacking compassion for the victims of crimes and their families. I have seen crime photos and heard interviews that are so disturbing I wish that I had not. But, I do not think the families of the victims of unspeakable crimes are comforted when their perpetrators are put to death. Death row inmates are a microcosm of what is wrong with our society and perhaps their victims’ loved ones might find more solace if we studied and analyzed those who should never walk among us towards identifying the signals that we missed. Maybe a more fitting tribute to the victims of our death row population would be an attempt to figure out what kind of intervention is necessary to keep a disturbed kid from evolving into a monster.

Almost every death sentence convict pursues appeals. I believe that the death penalty accomplishes nothing that betters our society but it puzzles me that more death row inmates don't opt out, and choose death over life in prison. I correspond with, through a social service organization, two lifers in California prisons and they report that due to furloughs and budget cuts there are fewer guards available and an inordinate amount of time is being spent on lockdown. Prisoners are confined to cells without air conditioning for 23 hours a day. Mail and library and canteen privileges are suspended. They are released daily for one hour of exercise and for a shower two times a week. I haven't the heart or nerve to ask either of them if death would be preferable to the decades they stand to exist like this. Plus maybe their answers would make me feel like a total hypocrite for opposing a death penalty as strongly as I do. Nevertheless, while both will inevitably die in prison, they have been spared state execution. Both write me long letters and there are complaints about their circumstances, particularly with regard to the recent funding cuts. I do not know the details of their crimes, only that their sentences are for life without the possibility of parole. Besides their gripes, each letter is filled with smart ideas, good advice and warm wishes for me and my family. They make me sad but also, these two guys who will be warehoused until they wither and die, make my life better. Selfishly, I am thankful that for them, opting out is not an option.

Shabbat Shalom