Is lethal injection barbaric? Ohio revisits the ethics of execution

Is lethal injection barbaric? Ohio revisits the ethics of execution

2007-01-11

By Daniel Sturm

Athens NEWS Contributor

When Jonathan Groner put his dog to sleep, he knew the procedure would be quick and painless. He said he trusted the veterinarian because she euthanizes dogs daily, and he thought the procedure would be humane since dogs lack a perception of time. On the other hand, he said, there is no humane way to kill a human. Since the botched execution of Joseph Clark in May 2006, critics of Ohio's lethal-injection protocol have been pointing toward the risk of torture in the execution chamber if a licensed anesthesiologist is not present. "A humane execution is the ultimate paradox," said Groner at his Columbus Children's Hospital office. The doctor of pediatric surgery and associate professor at Ohio State University College of Medicine and Public Health said he was troubled to see how the rise in Ohio executions was accompanied by the belief that the process of lethal injection was not controversial. He drew a parallel between the medical community's involvement in lethal injection procedures in the U.S. and concentration camp euthanasia programs in Nazi Germany (see sidebar interview). The dilemma is this: In order to execute people without "inflicting torture," the state would have to employ licensed doctors to administer the chemical cocktail. But medical professionals are bound to an oath to do no harm, and are ethically unable to participate in executions. Groner refers to this vicious circle as the "executioners' paradox." He believes that, ultimately, Ohio may have no choice but to halt executions and review its stance on the death penalty. Last June, the U.S. Supreme Court opened the door to challenges when it allowed death-row inmates to contest the deadly cocktail of chemicals used in executions. Six Ohio death-row inmates joined a lawsuit at the 6th U.S. Circuit Court of Appeals in Cincinnati, arguing that the state's lethal-injection protocol constituted cruel and unusual punishment. Their claim was fueled by the May 2 execution of Joseph Lewis Clark, which took nearly 90 minutes. The state's execution team closed the public curtain when, roughly four minutes into the execution, Clark said he felt pain in his arm. The lethal drugs were collecting under his skin rather than flowing into the vein. Clark raised his head from the gurney five times to repeatedly plea, "It don't work." This is why Groner thinks the state should call off executions altogether. "Do Ohioans really want to choose between torturing inmates to death or putting executions in the hands of doctors?" he asked in an op-ed piece for The Toledo Blade. "This dilemma is inherent in lethal injection, because it puts killing in the hands of healers. The only way for Ohioans to avoid this untenable choice is to call for a moratorium until capital punishment can be re-examined." The national momentum against lethal injection gained recognition in mid-December when the governor of Florida and judges in California and Maryland shut down statewide executions in order to conduct reviews. Currently, 10 of 39 death-penalty states have placed executions effectively on hold. Shortly before Christmas, the U.S. District Court for the Southern District of Ohio granted a stay to Kenneth Biros, whose execution was scheduled for Jan. 23, 2007. Death-row inmates Jeffrey Lundgren and Jerome Henderson were allowed to join Cooey's lawsuit. But while Lundgren was executed on Oct. 24, 2006 following a ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati, the same court halted Henderson's execution. U.S. District Judge Gregory Frost expressed his frustration about the conflicting rulings in writing: "Certainly, Henderson will not complain about the inconsistency, but Lundgren would no doubt have been interested in the Henderson panel's unexpressed rationale." The Cooey lawsuit was heard by a federal appeals court Dec. 7, but a decision could take several months. Death-penalty opponents hope that 2007 might be remembered as the year of the changing tide. Even before he took office Ohio's new Governor, Ted Strickland, told the Associated Press that former Gov. Taft's death-penalty reviews have typically taken at least several months. Strickland commented that even if a last-minute court ruling allowed Biros' execution to go forward Jan. 23, he wouldn't be ready by this date. Jim Tobin, a spokesman for Ohioans to Stop Executions, reacted positively to the announcement. "We commend the governor for wanting to take his time and be very deliberate on the death penalty," he said. Ohio has executed 24 prisoners since it reinstated the death penalty, after the introduction of lethal injections, in 1999. More than half of these executions have taken place since 2004, making Ohio currently the state with the second-highest execution rate, following Texas. Most of the state's 195 death-row inmates are now housed at the Ohio State Penitentiary (OSP) in Youngstown. On the day before the execution, the prisoner is transported to the "death house" at Southern Ohio Correctional Facility in Lucasville. Medical Doctor Says Ohio is Torturing Prisoners When California held hearings on the lethal-injection protocol last September, Columbia University Medical School anesthesiology professor Mark Heath testified that prisoners were still visibly breathing several minutes after personnel had administered pancuronium bromide, a muscle-paralyzing drug used in the process. At this point, the prisoners were supposed to be deeply sedated, to protect them from the pain of the third drug. "If someone is breathing like that, they may not be in a deep plane of anesthesia. They may not even be unconscious," Heath said. Coincidentally, Ohio's public defender asked Heath to give his expert opinion for use in the lawsuit, Cooey v. Taft. In it, Heath pointed out that Ohio uses only 2 grams of the barbiturate pentothal, a dose considerably lower than what is prescribed in many other lethal-injection states. Heath argued that Ohio's protocol created an "unacceptable risk that the inmate will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the procedure." In his analysis of Ohio's protocol, the state's expert Mark Dershwitz, an anesthesiologist at the University of Massachusetts Memorial Medical Center, found no significant risk of the pain and suffering alleged by Richard Cooey's attorneys. The professor noted that the risk that a prisoner would experience any pain associated with the lethal doses of pancuronium bromide and potassium chloride was "exceedingly small." Gregory W. Meyers, chief counsel for the Ohio public defender, whose lethal-injection lawsuit on behalf Cooey dates back to 2004, said that Dershwitz's opinion was only theoretical. "Who knows whether in practice it works out the exact way Dershwitz says?" Myers pointed out that recent lethal-injection trials in Missouri and Maryland had demonstrated that the devil was in the detail. "Lo and behold, they discovered in the Missouri case that the actual doctor involved there was dyslexic, and was altering how much of the pentothal to give according to his fancy. In Maryland, you learn that the actual execution team members were basically buffoons. They were made to look like a fool when it came down to whether or not they were even familiar with the protocol." In a letter from death row, Richard Cooey, who has met members of the Ohio execution team first-hand, stated that the process didn't seem to involve much medical expertise. "In July of 2003, I spent approximately 36 hours in the death house and am alive today only because of an 11th hour stay of execution," Cooey wrote this reporter. The inmate noted that correctional officers were present, the vast majority of whom had at most a high-school education, as well as EMT-qualified medical staff and, of course, the warden. "But none are qualified as doctors, cardiologists or neurologists. They are just average people who work the blocks and hallways at Southern Ohio Correctional Facility, nothing special," Cooey wrote. Questioning the Eye-for-an-Eye Society For Rodney Bowser, the question of whether lethal injection could amount to torture isn't the point. What mattered more was why the man who raped and killed his 21-year-old sister, Trina, had to be killed at all. The convicted killer, Glenn Benner, was executed by lethal injection on Feb. 7. Bowser thinks that Benner's life would not have ended strapped to a gurney had there been more support for his idea of bringing the prisoner together with the victim's family. Trina's brother hadn't always thought this way. He had spent two decades cursing the former childhood friend who killed his sister in 1986. But as the execution date approached, he decided he wanted to talk with Benner and repeatedly tried to set up a meeting with him at the Ohio State Penitentiary in Youngstown. This endeavor was more complicated than he had expected. He described how the state's prosecutor, the victim's advocate and family members all strongly advised him against meeting the man who had murdered his sister. When they finally met, on the day of the execution, and after two longer conversations on the phone, Bowser said he was ready to forgive his former childhood friend. "He didn't do what everyone said he would," Bowser recalled. "He didn't go off and yell and scream and all that kind of stuff. He answered all the questions that we'd wanted to know for more than 20 years. He told me the truth." Bowser said he wished there would have been a way to stop the execution, and that Benner had considered his legal options more wisely. "He knew he could have stopped the execution at any time. All he had to do is file an amendment to the lethal-injection lawsuit. That would have bought him enough time to make it through the 2006 election. And then, when you get a Democratic governor, you're just not going to be executed. He knew he could have stopped this." For the record, Governor-elect Ted Strickland is in favor of the death penalty, but has raised concerns about the way that it has been applied in Ohio and elsewhere in the U.S. For the brother of Dawn McCreery, another murdered Ohio woman, the type of forgiveness expressed by Bowser doesn't seem possible. Robert McCreery said he hopes Richard Cooey (one of the six death-row prisoners who filed the lethal-injection lawsuit) will suffer as much as Dawn did the day she was raped and murdered, back in 1986. Cooey, 39, is on death row at OSP for kidnapping, raping, assaulting and murdering 20-year-old Dawn McCreery and Wendy Offredo, 21. He has admitted to raping Offredo, but denies killing the two women, blaming his friend Clint Dickens, who at 17 couldn't get the death penalty and is serving two life sentences at Warren Correctional Institution. Robert McCreery said he hopes Cooey is conscious throughout the execution. "This punishment would befit the crime, wouldn't it?" he asked. "It's much less of a cruel-and-unusual punishment than strangulation, rape and beating someone to death." The father of three acknowledged that Cooey's death wouldn't bring back his sister - a young woman who had been a University of Akron student at the time of her death and didn't know her assailants. "But it's going to make me feel that justice has finally been served," he said. "They set a verdict for punishment 20 years ago that has yet to be carried out." WHAT WOULD YOU DO IF someone murdered your wife or daughter? This is the hardest question to answer, said James Tobin, a board officer for Ohioans To Stop Executions. Tobin, who is Catholic, said that if he were to lose a family member, he hopes he would be able to come to a state of mind where he could control his anger. "I would tell people, 'You know, I really don't want that person out in society. But I don't want him dead either.'" Tobin said that the fight over the lethal-injections protocol is important, but perhaps not the most important initiative. He said he's afraid that Ohio will just come up with another drug cocktail. After all, hadn't governments always argued about which execution method was more humane, whether it was the electric chair, lethal gas, hangings, firing squads or the guillotine? Beyond this debate, Tobin considers the arbitrariness of the death penalty to be the most important argument against it. In Ohio, fewer than 2 percent of murders result in death sentences for convicted killers. Although 10,585 murders took place in the Buckeye state between 1983-2000, only 201 individuals were sentenced to death. "It seems that executions in Ohio are symbolic political rituals that single out a few offenders to die," Tobin said. Back in Dr. Groner's Columbus Children's Hospital office, I asked the professor what he would say to people who supported executions by lethal injection. "All of Europe does not execute people," he said. "Our founding fathers' conscious decision was that we wouldn't be an 'eye for an eye' society. I'd also say that you can judge a society by its prisons. How we take care of society's ill off reflects on a society at large. And there is nobody worse off than a death-row inmate." SIDEBAR On Dr. Martin Luther King, Jr.'s birthday Jan. 14, statewide anti-death penalty groups are organizing a rally at the gates of the Ohio State Penitentiary (OSP) in Youngstown, where most of Ohio's 195 death-row inmates are now housed. The supermaximum-security prison is located East of downtown Youngstown, off of state Route 616. The prisoners whose windows face the road will be able to see the demonstration. This rally is a collaborative effort of the Cleveland Lucasville Five Defense Committee, the Youngstown Prison Forum and LOOP (Loved Ones Of Prisoners). When: Sunday, Jan. 14, 2-4 p.m. Where: 878 Coitsville-Hubbard Rd., Youngstown, Ohio. Contact: Pfcenter@sbcglobal.net; (216) 481-6671 Editor's note: Daniel Sturm is a German journalist who covers under-reported social and political topics in Europe and in the United States. Some of his work can be seen on the Internet at http://www.sturmstories.com. He recently moved to the Athens area.