“I will believe in the death penalty
when you will prove to me
the infallibility of human beings.”

Marquis de La Fayette (1757-1834)

A recent two-year study led by Mark White, former governor of Texas; Gerald Kogan, former chief justice of the Florida Supreme Court; and attorney Beth Wilkinson provides a comprehensive review of the death penalty. Until 2010, most states used a three-drug cocktail for lethal injections: an anesthetic (sodium thiopental or pentobarbital), a paralytic agent called Pavulon or pancuronium bromide, and potassium chloride, which stops the heart and causes death. Difficulties in obtaining the proper three drugs, complicated procedures for mixing them, and the lack of trained people willing to administer them have led to murderers suffering before they die. This is against the eighth amendment of the U.S. Constitution, which prohibits cruel and unusual punishment. According to Mark Earley, an attorney general in Virginia, the administration of capital punishment in America is “unjust, disproportionate and very likely unconstitutional.”¹ The vast majority of countries in Western Europe, North America and South America (more than 139 nations worldwide) have abandoned capital punishment.

According to this comprehensive report, the three-drug combination for lethal injections should be replaced by only one anesthetic or barbiturate. Eight states (Arizona, Georgia, Idaho, Missouri, Ohio, South Dakota, Texas, and Washington) have used a single lethal dose of an anesthetic for executions. The report also states that both state and federal courts often refuse to hear claims of new evidence presented by prisoners on death row and use a variety of procedural means to deny prisoners their rights. Mark White oversaw 19 executions in Texas where he was governor from 1983 to 1987. According to him, “we don’t have proper procedures to make sure we’re not executing innocent people.”²

In Texas, the state that executes more people than any other state, the controversy is focused on the proposed switch from sodium thiopental to pentobarbital in the three-drug cocktail. The American manufacturer of sodium thiopental, Hospira, recently announced that it would no longer produce the drug, and manufacturers in Europe do not want to supply the drug if it will be used in executions because they oppose capital punishment.

A sodium thiopental substitute called phenobarbital can be used instead of sodium thiopental because both drugs are barbiturates that depress the central nervous system. Contaminated pentobarbital can lead to a very painful death and the compounding pharmacies that provide pentobarbital are very unreliable. The Food and Drug Administration does not approve the products of compounding pharmacies. Compounding pharmacies must be licensed by their state’s pharmacy board, but do not have to register with the FDA or inform the FDA what drugs they are making. On November 18, 2013, Congress passed the Drug Quality and Security Act. President Obama signed the bill into law on November 27, 2013. The act allows large-scale compounding pharmacies to register as “outsourcing facilities,” which will be subject to FDA regulations.

Compounding pharmacies in the U.S. may be accredited by the Pharmacy Compounding Accreditation Board, but accreditation is not required. The Board requires that accredited pharmacies use high-quality chemicals and equipment, give pharmacists and medical staff regular training, test products for quality, and have an effective recall mechanism in place. Approximately 180 pharmacies in the U.S. have received accreditation.

The recent execution of Clayton Lockett in Oklahoma was botched because the makers of one of the three drugs required, sodium thiopental, stopped producing it and phenobarbital was used as a substitute. Lockett died of a heart attack about 40 minutes after the execution began. Charles Warner, who was scheduled to be executed two hours later, was granted a stay because of the problem with the drug cocktail.

After being given three drugs that were supposed to kill him instantly, Lockett “began to twitch and gasp” after having been declared unconscious. He called out “man” and “something’s wrong.” He then “struggled violently, groaned and writhed, lifting his shoulders and head from the gurney before the blinds to the [execution] room were lowered 16 minutes after the execution began.”³ It is likely that the execution was botched and Lockett suffered pain because the pentobarbital was contaminated. It was purchased from a compounding pharmacy that was not accredited.

In Oregon, where physician assisted suicide is legal (as long as the physician gives the drugs to the patient and the patient goes home and takes them by himself) almost all assisted suicides use barbiturates, either Seconal or Nembutal. Why not use Seconal, the less expensive of the two drugs, for executions? Many doctors believe that Seconal provides a painless death for terminally ill people so they can die with dignity instead of continuing to suffer. Assisted suicide is legal in Oregon, Washington, and Vermont. The other 47 states should follow their example. If condemned men on death row are told to take Seconal if they want death to be painless, most of them would swallow the pills. Those who refused to take the Seconal could always be injected with a lethal dose of an anesthetic.

The death penalty is used primarily to make the family and friends of the victim feel better, since they often want revenge and closure. It is likely that Seconal is not used to execute murderers because witnesses to an execution don’t want to see the murderer die peacefully with a smile on his face. Most of the people in Oklahoma who knew the victim thought Lockett’s suffering was nothing compared to what she suffered, after being shot and buried alive. When comparisons are made between states with the death penalty and states without, the majority of death penalty states show murder rates higher than non-death penalty states. The death penalty does not deter crime at all. During the last 20 years, the homicide rate in states with the death penalty has been 48% – 101% higher than in states without the death penalty.⁴

Michigan was the first U.S. state to abolish the death penalty in 1846. Unfortunately, very few other states followed suit at that time. The famous comedian Bill Maher stated on one of his shows that he is for the death penalty, as long as we “kill the right people.” Unfortunately, this is impossible to do. No one can ever be completely sure that a person is guilty because the criminal justice system is far from perfect and human beings make mistakes frequently.

According to a new statistical study appearing in the Proceedings of the National Academy of Sciences, about one in twenty-five people imprisoned under a death sentence is likely innocent.⁵ Due to the margin of error in the study, “the innocence rate is probably between 2.8 percent and 5.2 percent,” according to University of South Carolina statistics professor John Grego.⁶ Vindictive killing is morally wrong even if it brings closure to the families and friends of the victims, because human beings are far from infallible. One of the Ten Commandments reads “Thou shalt not murder,” not “Thou shall not murder, unless the person to be executed has been declared guilty of murder by a jury of twelve allegedly unbiased human beings.”

The death penalty should be abolished as soon as possible, because between 2.8 percent to 5.2 percent is a completely unacceptable margin of error. How would you feel if your son were on death row and you knew he had been framed, especially if you could not afford to hire a private lawyer for him and he got an overworked public defender that spent very little time on his case? It is natural for people to want revenge when their loved ones are tortured to death, but that does not make revenge morally right. It is far better to let men convicted of first degree murder be sentenced to life in prison without parole and no visitation privileges than to let so many innocent people die. A living prisoner can be released (and possibly be given money from a law suit) if evidence later proves his innocence. Once a person is executed, it is too late to make amends.

Footnotes

¹Phelps, Timothy M. (May 6, 2014) Study of death penalty in U.S. calls for overhaul. Los Angeles Times. (Retrieved from http://www.latimes.com/nation/la-na-death-penalty-20140507-story.html#).
²Phelps, Timothy M. (May 6, 2014) Study of death penalty in U.S. calls for overhaul. Los Angeles Times. (Retrieved from http://www.latimes.com/nation/la-na-death-penalty-20140507-story.html#).
³Downie, James. (April 30, 2014) Oklahoma’s horrible ‘botched execution’ shows again why the death penalty should be abolished. The Washington Post. Retrieved from http://www.washingtonpost.com/james-downie/2013/02/06/9d151d06-70a8-11e2-8b8d-e0b59a1b8e2a_page.html)
⁴States without the death penalty have had consistently lower murder rates. Death Penalty Information Center. (Retrieved from http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates)
⁵Yost, Pete (April 28, 2014). Study: 1 in 25 death cases likely innocent. The Associated Press. (Retrieved from http://bigstory.ap.org/article/study-1-25-death-cases-likely-innocent)
⁶Yost, Pete (April 28, 2014). Study: 1 in 25 death cases likely innocent. The Associated Press. (Retrieved from http://bigstory.ap.org/article/study-1-25-death-cases-likely-innocent)