By Robbie Byrd
— Editor’s Note: This story is the second in a series examining the death penalty from both opponents of and those in favor of lethal injection.
Every day, David Elliot goes to work, hoping that the next day he won’t have a job.
As spokesperson for the National Coalition to Abolish the Death Penalty, Elliot fights every day to end the very thing that keeps food on his table and a roof over his head.
“It’s pretty ironic,” Elliot said. “I think about it all the time. But it is a problem I, we, wouldn’t mind facing.”
And it looks like, if for no more than a few months, Elliot’s wish may have come true.
A de facto moratorium on executions in the U.S. has given a breath of fresh air to activists who call the practice barbaric and unjust, and opened a door to what they hope will be the end of executions in the nation for good.
Two schools of thought
Dennis Longmire is on hand for nearly every execution that takes place at the Huntsville “Walls” Unit — with candle in hand and a heavy heart.
But, a recent decision by the U.S. Supreme Court to hear a case from Kentucky questioning the constitutionality of lethal injection has put his vigils on hold indefinitely, but more than likely only temporarily.
“There are a lot of people very happy right now because there's at least been a pause,” Longmire said. “How long it’s going to be is unknown.”
Within the anti-death penalty movement, Longmire said there are two distinct “schools of thought” about the future of executions in the U.S.
The abolitionists, Longmire said, are celebrating now that there has been an “indefinite pause” in the executions of inmates.
Among that group are Elliot and his organization, as well as NCADP’s sister organization, the Texas Coalition to Abolish the Death Penalty.
But the other “group,” including Longmire, isn’t so sure.
“The other perspective is until we start dealing with the bigger questions having to do with the entire question of can we humanely take another human’s life, we’re going to continue to deal with this issue in technical, legal ‘smart bombs.’”
One of those “smart bombs,” Longmire acknowledges, is the current question facing the nation’s highest court: is the current procedure, used in 37 of the 38 states that impose lethal injection upon condemned inmates, causing pain that otherwise could be avoided.
“It’s not about whether the death penalty is constitutional or whether the process they use is constitutional,” Longmire said. “It’s about whether or not the particular chemicals used should be replaced with ones that have greater certainty that they don’t cause any pain.”
Primum non nocere
According to the American Medical Association, doctors who participate in executions are violating oaths they take to become doctors.
But until recent years, doctors weren’t necessarily a common occurrence at executions, nor were they needed.
Executions by electrocution, cyanide gas, hanging and firing squad were relatively immune to problems Longmire claims are created by lethal injection.
“If we’re going to use an injection-based method of execution then there is always going to be that risk (that something will go wrong),” Longmire said. “Unless we have anesthesiologists and medically trained personnel there is always the risk the needle will go through the vein and it will be going into the tissue.”
As was the case in Florida in 2006, when the state executed Angel Diaz.
According to the Death Penalty Information Center, Diaz began to squirm and grimace after the first round of drugs was administered. Executioners administered a second dose, and it took 34 minutes for Diaz to be declared dead.
A Florida medical examiner said later an autopsy showed the needle went through Diaz’s vein and into the muscle tissue of his arm. Then Gov. Jeb Bush called a halt to executions and ordered a commission “to consider the humanity and constitutionality of lethal injections.”
According to reports, “medically trained” staff of the prison system inserted the catheters into Diaz, not doctors. As well, no official reports of doctors participating in executions have been released, despite some pressure from state legislatures and courts to have them present.
“I don’t think there is very much question even among the medical community that there is a possibility that the particular protocol being used now could cause a long and lingering painful death,” Longmire said. “It requires a quasi-medical process (and) when it’s not working somebody needs to intervene and either stop it or expedite an alternative.”
The hesitance of doctors or organizations that represent them is the simple phrase that every medical student learns: the Latin “Primum non nocere,” or “first, do no harm.”
“Unless the medical community gets on board ... there’s the risk of pain on the person receiving it,” Longmire said. “And they don't appear to be.”
The Kentucky case had originally included a question for the court regarding the medical availability of personnel and equipment to revive a condemned inmate midway through the process, but the court decided this week not to hear that argument.
Ultimately, the Florida commission made recommendations and the state continued on with executions.
Other similar problems have been encountered in other states, but even with its overwhelming number of executions versus other states, problems in Texas have been few and far between.
Many questions, few answers
And in the state with the most executions — by far — the question of how the state achieves such raw efficiency and an apparent lack of problems is even more important here than in any other, Longmire said.
And the questions may not be easy to answer.
“Certainly Texas has created a process that is relatively immune from oversight because they maintain a great deal of security and a very closed environment around the actual process and protocol,” Longmire said.
In other states, execution protocols have been made public either through a voluntary act of the state’s corrections system or by legislative mandate or a court investigation.
While the Texas Department of Criminal Justice has made public the chemicals used in the process, it has not made public the actual policies and procedures that are followed during an execution, citing — in the past — security concerns.
“As administrators, it is a very wise thing to do,” Longmire said. “The less ‘formal’ information we have the less susceptible (they) are to challenges ... and we can’t claim (the state) has done something inappropriate or not followed a procedure.”
The involvement of doctors is limited in Texas to declaring the inmate dead. The doctor waits behind a closed door until signaled by the warden and has no involvement with the execution, the agency has said.
According to a release from spokesperson Michelle Lyons, “a medically trained individual inserts the intravenous catheters used to deliver the lethal injection.”
A bigger question
While the Supreme Court decides the issue over the current procedure of lethal injection, death penalty opponents hope that the pause in executions will allow for a broader discussion of the death penalty in general.
“What we know is we’re going to have an opportunity to go beyond the questions raised in this particular case and discuss the death penalty in a larger context,” Elliot said. “Here’s the deal: when you have a period of time with no executions, it allows us to have a focused, rational and sober discussion with the American public over the issue of capital punishment.”
Longmire argues that “unusual” in the sense of the eighth amendment applies not only to lethal injection but to executions in general.
“Can we issue capital sanctions fairly?” Longmire asked. “If we can't, then we need to take a larger look at the unusualness, in respect to is it being administered in a consistently fair manner against all subject groups in our state.”
Longmire claims it is not, citing socio-economic and racial prejudices.
“There are huge biases in the system,” Longmire said. “Not intentional or built in but just by the nature of the criminal justice process.”
In the meantime, Elliot argues that a more just punishment is for condemned murderers to spend their entire lives in jail, something he calls “death by sentencing.”
“The death penalty sends murder victims family members through a horrendous, long, topsy-turvy rollercoaster ride of appeals with no finality at the end,” Elliot said. “Put them in a tiny cell for the rest of their lives, throw away the key and lets call it death in prison.”
Until the bigger problems are fixed, Longmire said that executions will hardly be the punishment it is intended to be.
“The system needs to be reformed before we can begin doing executions with any sense of pride,” Longmire said.
“If we can ever do that.”