The Supreme Court’s Responsibility for Recent Death Penalty Mishaps

Posted in: Constitutional Law

The execution rate in the United States has declined in the last two decades, but what the late Justice Harry Blackmun famously called “the machinery of death” remains deeply flawed. Two recent controversial executions illustrate how capital punishment continues to defy attempts at civilizing.

A Torturous Lethal Injection

Some methods of execution that are now regarded as horrific were first introduced as efforts to decrease the suffering of the condemned during the process by which the state deliberately takes his life.  The guillotine and the electric chair were each, in their day, considered humane.  In more recent times, lethal injection has become the supposedly humane method of choice.

In principle, lethal injection could make death relatively painless.  People euthanizing a suffering family pet or, in jurisdictions that permit physician-assisted suicide, hastening their own deaths, routinely choose a lethal dose of barbiturate to ease the passage.

But execution at the hands of the state by lethal injection typically involves a “cocktail” of three chemicals, rather than a large dose of sedative.  As a consequence, it holds the potential for horrific mishaps.  If the paralytic chemical takes effect but the anesthetic does not, the condemned may experience excruciating pain but appear outwardly placid, as the paralytic prevents him from showing what is happening.  (The same problem has sometimes plagued anesthesia during surgery.)

Citing the risk of a botched execution, two death-row inmates challenged Kentucky’s use of the three-drug cocktail as a violation of the Eight Amendment’s prohibition on cruel and unusual punishment.  In the 2008 case of Baze v. Rees, the Supreme Court rejected the challenge.

As a technical matter, the High Court’s ruling in Baze held only that there was insufficient evidence to show that the standard lethal injection cocktail was being administered in a way that posed an unacceptable risk of inflicting pain that would violate the Eighth Amendment.  In theory, therefore, the case left open the possibility that, in some other, future case, such a showing could be made.

In actual operation, however, a Supreme Court ruling that the evidence against some practice does not suffice to invalidate that practice typically has the consequence of validating that practice against other evidence as well.  And thus it was with lethal injections.  Since Baze, it has been widely assumed that lethal injection is legally permissible.

A recent execution in Ohio should, but probably will not, cause courts around the country to reexamine their assumptions about the constitutionality of lethal injection.  It took Dennis McGuire nearly half an hour to die from the lethal injection administered to him.  During that time, according to one highly credible eyewitness, McGuire struggled and gasped, suffering what his family described as torture.

Why did McGuire’s execution go so badly?  A superficial assessment might lead to the conclusion that it was because the state used an untested combination of two chemicals, rather than the standard three-drug cocktail approved in Baze.  But Ohio abandoned the three-drug cocktail after prison authorities bungled its administration in a 2009 case, thereby vindicating the position that the Supreme Court rejected in Baze.

Thus, although lethal injection is, in theory, a humane method of execution, in fact it carries serious risks.  It turns out that prison officials killing a person who does not want to die face challenges that doctors and veterinarians performing euthanasia do not.

An Execution in Violation of International Law

The torturous execution of Dennis McGuire was not the only illegal administration of the death penalty in recent weeks.  Last week, Texas executed Mexican national Edgar Tamayo over the objections of the government of Mexico and U.S. Secretary of State John Kerry.  Their pleas to Texas Governor Rick Perry and to the Supreme Court fell on deaf ears.

Yet there was no doubt that the execution of Tamayo violated international law.  In 2004, the International Court of Justice (ICJ) ruled in the Avena case that the United States violated the rights of 51 Mexicans when they were arrested, tried, convicted, and sentenced without first being notified of their right to consult with their nation’s consular representatives.  The ICJ said that in failing to provide such notice, the U.S. breached the Vienna Convention on Consular Relations—and that state law could not be invoked in these particular cases to treat the Mexicans’ Vienna Convention claims as defaulted.

Tamayo was one of the Mexican nationals whose rights were vindicated in Avena, but the ICJ victory has been for naught.  In two subsequent decisions, the U.S. Supreme Court effectively treated Avena as a dead letter.

First, in the 2006 case of Sanchez-Llamas v. Oregon, the Court held that while the ICJ ruling in Avena was entitled to “respectful consideration” in the U.S. courts, it was not binding domestically.  The Court majority then went on to disagree with the ICJ, allowing states to treat the failure to raise Vienna Convention objections in accordance with state procedural rules as forfeiting claims.

To its credit, the Administration of President George W. Bush attempted to give the Avena ruling domestic effect, ordering state courts to treat it as binding.  But the Supreme Court then struck again in the 2008 case of Medellin v. Texas.  There, the Court ruled that, absent explicit authorization in a statute or treaty, the President had no power to impose such a duty on the states.

The bottom line here has been a kind of shadow obligation.  Every time a state of the United States executes a foreign national whose Vienna Convention rights were violated, it thereby violates international law.  But because the Supreme Court has frustrated efforts to give domestic effect to the treaty obligation, states can put the United States in breach of international law without facing legal consequences.

A Causal Hypothesis: The Supreme Court Is Tired of Death Penalty “Technicalities”

Given the accumulating evidence that execution by lethal injection cannot be reliably carried out without creating a substantial risk of inflicting what amounts to torture, the Supreme Court should reexamine Baze v. Rees.  And given the increasing isolation of the United States in the world community as a result of its flouting of the ICJ, the Supreme Court or Congress should overturn Sanchez-Llamas and/or Medellin.  But that does not mean that anything will, in fact, change.

Why not?  One can never be sure about how or why people do or do not change their minds about such weighty matters as the death penalty, but I have a hypothesis.  Even as the country has increasingly become concerned about the execution of people who are in fact innocent, and even as the Supreme Court has continued to place some limits on who may be executed, the Court’s conservative majority remains skeptical of those death penalty claims that they view as raising “technicalities.”

Most of the lawyers who are active in the death penalty defense bar are abolitionists: they favor elimination of the death penalty in its entirety.  When such lawyers argue that some particular method of execution is unconstitutionally cruel, they lack credibility with some Justices because, after all, these lawyers believe that every method of execution is unconstitutional.  They are using the method-of-execution claim opportunistically.

The same phenomenon may also be at work in the context of Vienna Convention rights.  States and localities routinely violate the Vienna Convention, partly due to inadequate police training, and partly due to the fact that it is not always clear to an arresting officer that a suspect is a foreign national who is entitled to receive Vienna Convention notification.  Nonetheless, foreign governments do not typically protest Vienna Convention violations, unless the death penalty results.  As a consequence, Justices and others may view the protests that do get lodged as using the breach of the right to consular notification opportunistically.  The real reason for the protests, in this view, is that the protesting countries dislike the death penalty: The U.S. is virtually unique in the democratic world in retaining capital punishment.

Yet even if I have correctly identified a causal explanation for the Supreme Court’s hostility to certain sorts of claims against the death penalty, that still does not amount to a justification for such hostility.  So what if lawyers and countries use the law opportunistically?  The law is the law, and if the law is best construed to forbid lethal injection, or to forbid execution of foreign nationals who were denied their Vienna Convention rights, then the motives of the people making the claims should not matter.  It should be enough for them to point to torturous executions and breaches of international treaty obligations.

10 responses to “The Supreme Court’s Responsibility for Recent Death Penalty Mishaps”

  1. Simon D says:

    I join the first part. We should ask: Why, if we’re going to have the death penalty, and if we’re going to
    administer it by lethal injection, and if we’re going to tell ourselves
    that that’s the humane and painless way to do it, why we don’t just use
    the method that routinely and painlessly kills pets and sometimes
    (accidentally) patients, rather than fiddling around with bizarre and
    risky multi-part drug protocols?

    But as to the second part, the fundamental problem with the convention cases and Aveena and the ICJ is that they fail a civics test that every immigrant is expected to answer. Avena is a dead letter because it fails to comprehend that the United States (the party to the convention) hasn’t executed anyone or deprived anyone of their rights. The execution the other week wasn’t carried out by the United States—as with Medellin, it was carried out by Texas. Texas is not obligated by the convention. What underlies all these cases is this: The United States’ mouth wrote a check that its butt hasn’t cashed. I seriously doubt that Congress has the power to pass implementing legislation; as the court is (we hope) going to affirm in Bond, the United States doesn’t gain the power to regulate X when it otherwise lacks power to regulate X simply because the United States makes a treaty with Russia promising to regulate X. But even if you assume that Congress has that power, it hasn’t used it. So maybe the United States is in default, but it’s not because it executed someone (it didn’t), but rather because it has failed (or may be incapable) of carrying out its treaty obligation to stop Texas from executing someone.

    • Joe.02 says:

      I don’t really get the second part. A “civics test” would tell you a treaty is the law of the land. The states are obligated to follow it. Yes, the ultimate problem is the lack of Congress passing enabling legislation. But, it has an obligation to do so. Bond concerns what seems like a local crime. Dealing with the rights of aliens is quite another matter.

    • rhw says:

      Regardless of the outcome in Bond, implementation of the Vienna Convention’s provisions concerning the treatment of foreign nationals is plainly “necessary and proper for carrying into Execution” the Government’s power to manage foreign affairs –indeed the framers would have seen protecting US nationals abroad (through reciprocal treaties) as a quintessential element of foreign affairs.

      Nor is it much of a stretch to say that Congress’s power to “punish . . . Offences [sic] against the Law of Nations,” enables it to prevent a state from violating customary international law (which surely includes the Vienna Convention).

      • Simon D says:

        There’s nothing plain about that at all. The necessary and proper clause cannot conceivably give the federal government power to implement any legislation that it promises another country it will implement, any more than it gives the federal government power to implement legislation that violates constitution rights upon making such a promise to a pliant vassal. If anything is plain here, it is that the United States made a promise on which it had no power to deliver.

        • rhw says:

          Once you’re done arguing with that straw man, you might want to take a look at what I actually wrote, which was that

          (1) the framers would have seen the ability to enter into binding treaties concerning the treatment of foreign nationals as necessary and proper to the conduct of foreign affairs; and

          (2) the Constitution expressly gives Congress the power to prevent violations of the “Law of Nations” (which probably includes the Vienna Convention).

          See also U.S. Const. art. III, sec. 2 (“The judicial Power [of the
          United States] shall extend . . . to Controversies . . . between a
          State . . . and foreign States, Citizens or Subjects.”).

    • dudleysharp says:


      Vets use pentobarbital or sodium thiopental.

      Manufacturers have put restrictions on those agaisnt human executions.

  2. dudleysharp says:

    The (imagined) Horror of Dennis McGuire’s Execution
    Dudley Sharp

    Ohio justly executed rapist/torturer/murderer Dennis McGuire.

    Unconscious, McGuire snored and the media went apoplectic.

    The Horror is that the media will have 10,000 more articles about the imagined suffering of this executed rapist/torturer/murderer than they did about the real suffering of his victims, Joy Stewart, her husband Kenny, unborn child Carl and their families and friends.

    There is no indication that McGuire was in pain, at any time, or that he was conscious after the first 1-3 minutes of the 25 minute execution process, as pharmacological realities would dictate (see below).

    There is every indication that Joy Stewart was conscious throughout the eternal horror of her savage rape and murder. McGuire forced Joy from her car, choked her, attempted to rape her vaginally, raped her anally, slashed her throat so deeply it severed both her carotid artery and jugular vein, all the while Joy realizing the horror of her own death, as well as that of her unborn child.

    The baby’s name would have been Carl, his mother’s grave marker shows.

    Joy’s husband, Kenny, committed suicide within a year after their murders.

    McGuire had more time on death row than Joy had in life.

    “State prison records released Monday say McGuire told guards that (McGuire’s counsel, Robert) Lowe counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display.” (1)

    “Amy Borror, a spokeswoman for the public defender’s office, said all accounts from execution eyewitnesses – which did not include Lowe – indicate McGuire was unconscious at the time he struggled to breathe.” (1)

    “Medical experts would not comment on Mr. McGuire’s execution or speculate about what he experienced. They agreed that used for surgery, the two drugs would not cause pain. (2).

    “By virtue of what they do, they cause unconsciousness, and they inhibit pain,” said Dr. Howard Nearman, professor of anesthesiology at Case Western Reserve University (2).

    As there was no surgery, both drugs were given at overdose levels and both drugs would enhance the effects of the other, of course there was no pain.

    Do folks wheeze, snore, move or cough etc. while sleeping? Do those with opiate overdoses wheeze, snore, move, cough, have spasms, etc.? Of course, which is all that happened with McGuire, as some predicted.

    The Associate Press witness:

    “McGuire was still for almost five minutes, then emitted a loud snort, as if snoring, and continued to make that sound over the next several minutes. He also soundlessly opened and shut his mouth several times as his stomach rose and fell.” “A coughing sound was Dennis McGuire’s last apparent movement, at 10:43 a.m. He was pronounced dead 10 minutes later.” (3)

    No evidence of consciousness or pain.

    Sadly, we have ignorant, anti death penalty folks, who just can’t wait to get their word out, such as McGuire’s spiritual advisor, Father Lawrence Hummer, stating, “There is no question in my mind that Dennis McGuire suffered greatly over many minutes. . . . this experimental two-drug concoction had taken 26 minutes. I consider that inhumane.” (4)

    McGuire’s children have threatened to sue the state over their father’s just execution. So foul. They have learned so very little.

    Their only comments should have been:

    “We are truly sorry for the horror and suffering that our father has caused to Joy, her husband, Kenny, their unborn son, Carl and to their family and friends. Our thoughts and prayers will be with them, always.”

    Maybe Father Hummer’s only words should been along those lines, as well.

    Possibly, someone in the media, as well as others, will look up the overdose properties of the drugs involved (below) and tell us how McGuire could, possibly, have been conscious. He couldn’t have been.

    The properties of the drugs and their overdosing effects are very well known – by no means an experiment.


    2) Family Sues in Protracted Ohio Execution, ASSOCIATED PRESS, New York Times, JAN. 25, 2014

    3) (OHIO KILLER EXECUTED WITH NEW LETHAL DRUG COMBO, ANDREW WELSH-HUGGINS AP Legal Affairs Writer, The Daily Record, January 16, 2014 2:57PM

    4) “I witnessed Ohio’s execution of Dennis McGuire. What I saw was inhumane”, Lawrence Hummer, The Guardian,, 22 January 2014 13.51 EST

    FACT CHECKING: Midazolam, a sedative, & Hydromorphone, an opiate/painkiller

    The Ohio lethal injection protocol is 10mg of midazolam & 40mg of hydromorphone, mixed together then injected.

    The injection took 20 seconds.

    The toxicity of benzodiazepines (including midazolam) overdose and risk of death is increased when combined with opiates and when used intravenously, with symptoms including respiratory distress, coma and death.

    “More than 80 deaths have occurred after the use of midazolam . . . 78% of the deaths associated with midazolam were respiratory in nature.” (MIDAZOLAM HYDROCHLORIDE: Human Health Effects,

    “The initial intravenous dose for sedation in adult patients may be as little as 1 mg, but should not exceed 2.5 mg in a normal healthy adult.”, Midazolam Injection,

    4 times that initial maximum dose was given to McGuire.

    However, ” . . . total dose >5 mg (of midazolam) “usually” (my emphasis) not necessary to reach desired sedation . . .”, Medscape, midazolam (Rx) – Versed, IV,

    Hydromorphone overdose,

    “IV initial dose: 0.2 to 1 mg every 2 to 3 hours (given slowly over at least 2 to 3 minutes)”, Hydromorphone Dosage,

    40-200 times those dosages were given to McGuire.

  3. dudleysharp says:

    Michael writes:

    “If the paralytic chemical takes effect but the anesthetic does not, the condemned may experience excruciating pain but appear outwardly placid, as the paralytic prevents him from showing what is happening. (The same problem has sometimes plagued anesthesia during surgery.).

    Michael, how do the pharmacological properties of the anesthetic just dissapear?

    They don’t.

    How often do patients experience waking up during surgery, paralyzed, after being given a lethal overdose of anesthesia?



  4. Joe.02 says:

    Fitting the theme, Justice Alito — see Sentencing Law and Policy Blog and the order page on the SCOTUS website — temporarily stayed the execution of someone today in what seems to be a dispute over the legality of not releasing info on lethal injection drugs. It was later lifted.

  5. Guest says:

    We only saw a few vague orders on the Supreme Court website but controversy and a short term stay by Justice Alito occurred before the execution that just occurred in Missouri. Media coverage focused on lethal injection issues but at least a couple blogs referenced Batson/racial challenge issues.