Death with dignity and the death penalty, a drug story

by John MacBeath Watkins

On Nov. 1, 2014, Brittany Maynard took drugs prescribed by her doctor, and died peacefully, surrounded by her loved ones. She had moved from California to Oregon to take advantage of the state's death with dignity law, choosing her time to die rather than suffering a lingering death from brain cancer.

On July 23 of the same year in Arizona, Joseph Rudolf Wood III died, apparently after nearly two hours of agony following a supposedly lethal injection. Arizona Republic reporter Michael Kiefer was there as a witness.

"Suddenly he opened his mouth," Kiefer says. "His mouth sort of made this funny round shape, and you could see this expulsion of air, and we all jumped. This was something different."

Kiefer started making hash marks every time Wood struggled for a breath. He'd made 640 hash marks by the time Wood succumbed to a combination of midazolam and hydromorphone amounting to 15 times the dose that had been deemed lethal prior to the execution.

Why are we able to humanely end the life of people using the death with dignity laws, but not people being executed by the states?

Well, for one thing, drug companies are not eager to sell drugs for the purpose of executing people. It's bad for business. Perhaps this is why the state of Arizona was using an opiate on a man with a history of substance abuse, who might be expected to have a higher tolerance for opiates than most people.

Some experts had warned that the drug cocktail proposed for this execution might not be effective. In the end, it took 15 shots of the supposedly lethal dose to execute Wood.

On Jan. 9, 2014, Michael Lee Wilson, being executed by Oklahoma, gave us these last words:

"I feel my whole body burning."

European drug companies will not sell the barbiturates used in death with dignity cases to states to use in executions. States are turning to untested drug cocktails and drugs to which convicts are likely to have a high tolerance.

There is a long and unpleasant history to executions. There was a time when people were publicly beheaded, or even drawn and quartered. Here's the Wikipedia version of what was involved:

Convicts were fastened to a hurdle, or wooden panel, and drawn by horse to the place of execution, where they were hanged (almost to the point of death), emasculated, disembowelled, beheaded and quartered(chopped into four pieces). Their remains were often displayed in prominent places across the country, such as London Bridge. For reasons of public decency, women convicted of high treason were instead burned at the stake.

While the American constitution prohibits cruel and unusual punishment, traditionally public cruelty was a major part of what punishment was.

And that's one important conflict with the death penalty. It is a barbaric holdover from an earlier time, when the notion of kind and usual punishment would have seemed self-contradictory. It is an act of vengeance carried out by the state. Proponents argue that it acts as a deterrent on others considering capital crimes, but this is not borne out by research. In any case, in earlier times, it was thought that executions should be public to deter others, not held in a quiet chamber where only a select few witnessed the execution.

We no longer display heads on pikes, and I think we are better for the change.

So why do we use lethal injection? Well, when it works, it is a quiet death that leaves no easily seen disfigurement of the body. The methods of execution we have abandoned are those that met the earlier standard of execution -- they disfigured the prisoner in a way that it was assumed would discourage others from committing similar crimes.

But executions are no longer a public spectacle; we hide them away, with just a few witnesses to assure ourselves that it isn't because we're ashamed of state-sanctioned killing.

And now the drug companies think it isn't good business to sell the substances that will allow this charade to go on. It isn't a rare instance of pharmaceutical companies taking a moral stand, it is fear of consumer backlash. This is because public attitudes are changing toward the death penalty.

The number of people favoring the death penalty peaked in 1994 at 80%. The number opposing it reached its nadir in 1995 at 13 percent. Since then, the number in favor has dropped to 61% and those opposed has climbed to 37%. (All figures are from Gallup, here.)

In 1966, only 42% favored the death penalty and 47% opposed it. By the late 1960s, virtually no people -- and in some years, actually no people -- were executed.

It seems as people got further from actual executions, the popularity of executions rose. As the number of executions increased, support for executions declined.

It is all very well to support execution in theory, but supporting it when actual people, no matter how bad, are dying, is harder to do. And investigators such as the Innocence Project have uncovered evidence that people on Death Row were not guilty of the crimes for which they were scheduled to be killed. Usually, after a person is executed, the evidence is destroyed (in most states, evidence is retained only until the period of incarceration ends, such as when a person is executed.) The cost of storing such evidence, compared to the cost of convicting a prisoner and carrying through all the appeals that tend to accompany such convictions, is minimal. Illinois, which saw the death penalty suspended in 2000 for fear the innocent were being executed, has a law requiring permanent retention of evidence in death penalty cases, and at about the same time abolished the death penalty. Occasionally, a legislator tried to bring the death penalty back. There will always be those who want revenge.

Illinois Gov. George Ryan had seen Anthony Porter come within 50 hours of execution before his innocence was established. That put a human face on the failings of the justice system, but it was the fact that so many cases were overturned that really ended the death penalty in the state.

When people think about the death penalty in the abstract, they don't have to think about how any human institution actually functions, or doesn't. It is when the system has been in place for a time, and the failures become evident, that the flaws become evident.

Why is death with dignity not a threat to the profits of the drug companies? Because it applies for people who have chosen to die. The problem of unjust killing under color of law does not arise.