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.