Torture in Tennessee

Today the state of Tennessee is set to murder inmate Billy Ray Irick using a lethal injection cocktail using midazolam, vecuronium bromide and potassium chloride.

Midazolam is a sedative that will supposedly  render Mr. Irick unconscious. Vecuronium bromide is a paralytic that would prevent Mr. Irick from making any movements. Potassium chloride is the drug that will stop Mr. Irick's heart - and leave him dead on the gurney.

The question, however, is whether or not midazolam is an effective sedative for purposes of executing inmates. As has been seen in botched executions in Florida, Ohio, Arizona and Oklahoma, midazolam has led to excruciating pain for inmates and even aborted executions.

In 2013 William Happ was executed in Florida using midazolam. Witness accounts state that he remained conscious longer than usual and made more body movements after losing consciousness than normal.

In 2014 Dennis McGuire was executed in Ohio using midazolam. After being administered the drug, Mr. McGuire clenched his fists, gasped and struggled to breathe.

That same year Clayton Lockett died in Oklahoma after being administered midazolam. The drugs didn't kill him and the execution was called off abruptly in midstream. Mr. Lockett then died of cardiac arrest that night.

Still later that year Joseph Wood was executed in Arizona using midazolam. It took over two hours for Mr. Wood to die and one reporter said that Mr. Wood gasped for air more than 640 times.

There is no proof that midazolam is the appropriate drug for use in killing inmates. Inmates awaiting execution in Tennessee filed suit against the state arguing that the lethal cocktail would violate their 8th Amendment right to protection from cruel and unusual punishment. The argument is that the paralytic will render the inmate incapable of letting anyone know he is undergoing extreme pain during the process. For those watching from the gallery there would be no way to know if anything was going awry in the process.

During the court proceedings a pathologist called by the plaintiff's testified that he reviewed autopsies on 32 inmates who were executed. In 27 of those cases, the pathologist performing the autopsy found signs of pulmonary edema meaning the inmates had suffered respiratory distress during the executions.

The court in Tennessee, however, denied the plaintiffs' request for relief on the grounds that while they may or may not have proven that the new drug protocol was cruel or unusual, they didn't provide the state with a viable alternative to kill themselves.

That's right. The U.S. Supreme Court held in Glossip v. Gross, if you're challenging the constitutionality of a drug protocol for executions, you have to give the state an alternative method of taking your life.

Now we can sidestep the absurdity of that test for purposes of this argument. If a state wishes to carry out executions, that state must come up with a protocol for killing inmates that doesn't run afoul of the 8th Amendment. If evidence is brought forth that the protocol in question amounted to torture, then it's the state's responsibility to draw up a new protocol. To place the burden on those awaiting execution to draw up a protocol for their own death is about as Kafkaesque as you can get.

It's also a cop out from a court that doesn't want to dirty its hands in death penalty litigation. I know that many folks out there couldn't care less about whether an inmate suffers during an execution because they are focused on the pain and suffering he or she caused by killing someone else. To them I would point out that the purpose of our criminal (in)justice system isn't to obtain revenge. The purpose is to rehabilitate as many folks as we can and release them back into society to become productive citizens - those who can't be rehabilitated are then kept behind bars so they can't harm anyone else.

In many cases of death row inmates we are also talking about men who did stupid and/or despicable things when they were in their 20's and who have sat behind bars, in isolation, for two decades or more. To believe that they are the same people now that they were when the committed their crimes is pure fantasy.

There is no place in civilized society for this barbarism.