Picking Your Own Poison and Capital Defense Lawyers’ Ethical Quandary

Posted in: Law Practice

Today the long-awaited federal trial over Oklahoma’s execution protocols and drug cocktail will begin. Following the United States Supreme Court’s twisted rulings in Baze v. Rees in 2008 and Glossip v. Gross (2015), a crucial issue in the Oklahoma case will be whether death row inmates and their lawyers can identify a readily available method of execution that would be preferable to the state’s current method.

According to Harvard Law Professor Carol Steiker the essential meaning of Baze and Glossip is best summarized as follows: “We the Supreme Court have held the death penalty to be constitutional so there has to be a way to carry it out. If defendants don’t like the method used by the state, those defendants have to point to another readily available method to execute them.”

In a court filing last week, lawyers for the inmates followed that playbook. They did not try to stop Oklahoma from executing their clients. Instead they identified what they contend are better ways of putting them to death than the methods now in use in Oklahoma.

It is a good thing for them that there is no lawyer equivalent of medicine’s Hippocratic Oath, “First, do no harm.”

In the post-Baze/Glossip world, capital defense lawyers in the Oklahoma case, as in so many others, participate in a bizarre system. That system requires them to help their clients pick their own poison and then convince courts that the government should kill their clients using their chosen method.

The Oklahoma case was first filed in 2014 in the wake of Clayton Lockett’s horribly botched execution. Since then it has had an unusually complex history involving appeals and periods in which it seemed mooted by the state’s informal execution moratorium.

It was revived in February 2020, after the state announced its intention to resume executing death row prisoners. Since then, Oklahoma has executed four men using the three drugs in its lethal injection protocol, midazolam (a sedative), vecuronium bromide (a paralytic), and potassium chloride (which stops the heart).

One of those executions, the October 2021 killing of John Marion Grant, produced another gruesome spectacle. Media witnesses reported that he repeatedly convulsed and vomited after the administration of midazolam.

Using midazolam, the plaintiffs in the federal trial contend, will expose them to a significant risk of severe pain. They note that this drug has been implicated in several executions, like Grant’s, in which condemned inmates were incompletely sedated before the administration of the potassium chloride. According to Human Rights Watch, potassium chloride is “excruciatingly painful if administered without proper anesthesia.”

Harvard Medical School Professor David Waisel agrees and explains, “The first drug is key to ensuring a humane execution, because the paralytic and potassium will cause pain and suffering if the inmate is not anesthetized.”

While my own research shows that nothing can “ensure a humane execution,” Waisel is right that in any multi-drug lethal injection, “the first drug must have certain characteristics: rapid onset, so that the inmate does not go through an extended period of difficulty breathing; analgesia, to block the burning pain of potassium chloride; and consistency of effect for a given dose.”

In their recent filing, the capital defense lawyers told the federal court that Oklahoma had three viable alternatives to its current protocol.

First, it could remove vecuronium bromide from the lethal injection cocktail and use the opioid fentanyl as a “pre-medication.” Or it could use a single lethal dose of pentobarbital or sodium thiopental, with a predose of fentanyl. Or, if Oklahoma did not want to pursue either of those alternatives, it could use the firing squad to kill their clients.

Although in 2019 the Trump Justice Department considered using fentanyl, as did the state of Nevada two years later, the drug has been used only once in an American execution. Nebraska employed it in 2018 to put Carey Dean Moore to death.

The last execution by firing squad occurred in Utah in 2010.

But for the catch-22 of the Supreme Court’s current methods of execution jurisprudence, one could hardly imagine capital defense lawyers embracing either fentanyl, a drug associated with the ravages of America’s opioid crisis, or the firing squad.

Because of that jurisprudence, capital defense lawyers become complicit in a system they detest. Faced with the grim prospect that nothing can be done to stop an execution, they do what they can to ensure that their clients get the best death possible.

That effort unfortunately gives the death penalty a veneer of legitimacy by suggesting that there are in fact humane execution methods. As Ohio State Law Professor Douglas Berman argues, “Sophisticated abolitionists realize that a death penalty system made truly more perfect is a death penalty system more likely to garner broad public support and increase the number of state executions of convicted murderers.”

While many discussions of the ethics of capital defense work ignore or barely touch on the dilemma of providing representation that has such an effect, the Yale Law School Ethics Bureau has taken it on directly.

In 2014, it responded to the difficulty that the Baze decision created.

It said that the decision forced capital defense lawyers “to abandon the client’s set objective for the representation – and instead, to concede the constitutionality of another, untested method of execution – in spite of the fact that no lawyer should be required, in the face of a method of execution that the client asserts is unconstitutional, to advocate for an alternative.”

The Yale group foresaw that the kind of representation the lawyers in the Oklahoma had to provide would place them “under a severe and darkly ironic conflict: the principal goal of any lawyer representing a death row client is to prevent his client’s execution; yet the…pleading rule would require the lawyer to actively advocate for a particular means of achieving his client’s death in the course of attempting to avert it.”

The renowned legal ethics expert Stephen Gillers notes that putting lawyers in this position “undermines the foundation of the attorney client relationship. To put it in the form of a rhetorical question, the answer to which should be obvious: Does it subvert the trust and confidence essential to the relationship between a lawyer and a client to require the lawyer to advocate to a court a legally permissible way to kill his or her client? Just in case the answer is not obvious, it is yes.”

In the post-Baze/Glossip world, as Gillers puts it, “[T]he price of the defendant’s wish to challenge the state’s choice the making of a counteroffer — another means of execution that the defendant would then be conceding is legal. The lawyer is forced to choose between two unacceptable alternatives.”

The only way out of this situation is to end the cruelty that the Supreme Court now impatiently condones.

That cruelty is on display whenever the state kills one of its citizens and in the many botched lethal injections. It is also a constituent element of the Court’s insistence that death row inmates have to pick their own poison and enlist their lawyers’ help in that Kafkaesque exercise.

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