Wednesday, October 5, 2022

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Death in the USA – a botched attempt at execution

Alabama wanted to kill a man by making him breathe nitrogen based on a movie. Except the officers didn’t know how.

I began my work against the death penalty in the United States in 1981. It would be reasonable to assume that now, four decades later, I would have seen it all.

Not so. On September 22, Alabama lost a round in a chilling battle to have Alan Miller executed. First, they promised a federal judge that they were willing to experiment with a novel method — nitrogen hypoxia (essentially asphyxiation by replacing the oxygen in the air with pure nitrogen). The state then had to backtrack, saying they weren’t sure they knew how to do it, so they were going to kill him by lethal injection.

In one of those midnight battles I’m painfully familiar with, the Supreme Court voted five to four to let the Alabama executioners proceed with their ritual sacrifice, but by then it was too late for their probing needles to find a vein . So Miller is safe for a short while, although Alabama will no doubt set another date soon.

In a way, his narrow — and temporary — escape is a metaphor for everything wrong with the death penalty. Bizarrely, the inspiration for toying with nitrogen hypoxia as a new “kinder, gentler” method of execution is a television program recorded a few years ago by Michael Portillo, the former shadow chancellor of the British Conservative Party.

In the 1980s, Portillo, then MP, voted to reintroduce the death penalty in the UK. The bill was rejected. His enthusiasm for executions waned when he learned how many innocent men and women had been sentenced to death. When the issue resurfaced in the 1990s, he changed his voice. Fortunately, the UK has never mustered a majority to backtrack to rejoin the executioners.

Meanwhile, in 2008, Portillo was filming a BBC documentary entitled How to Kill a Human Being, which focused on making all executions as humane as possible. For his film, he toured the United States and considered—and rejected—accepted methods of execution, all of which he found barbaric. There was the electric chair: Jesse Tafero had a strong claim to innocence (his co-defendant, Sunny Jacobs, was later released and now resides in Ireland). Tafero’s head caught fire when Florida electrocuted him in 1990. Portillo illustrated this in his documentary by running 2,400 volts through a dead pig.

The gas chamber turned out to be no better. The Mississippi Department of Justice used Zyklon B for their executions. They allowed a BBC crew to film them testing on a black rabbit who died in agony (they were preparing to kill my African American client Edward Earl Johnson). We sued on the 50th anniversary of the liberation of Auschwitz to put an end to this barbarism.

Next, proponents of the “three-drug cocktail” lethal injection claimed it was a more civilized way of killing someone. It was advertised as nothing more than the type of anesthesia used in thousands of hospitals every day.

But if there’s one rule, it’s that the history of executions is full of false promises. They ignored an obvious problem: the Hippocratic Oath forbids medical professionals from “doing harm.” The task of inserting the needle was delegated to unskilled technicians. Therefore, even Dr. Jay Chapman, the inventor of the three-drug cocktail, botched executions carried out by incompetent people who couldn’t find a vein.

Incidentally, the “three drugs” are a tranquilizer, a paralytic, and a poison. Why the paralytic? Because it prevents witnesses from seeing the victim thrash about in pain when the sedative wears off. Sometimes the sedatives failed and the victim would lash out in pain. All of this became increasingly problematic when the pharmaceutical companies announced that they did not want to use their life-saving drugs to kill people.

In short, none of these methods satisfied Portillo. They are not human, he said. So far I can agree with him as I’ve seen six of my clients die before me, two executed by each system.

So Portillo led his search to a Dutch Air Force experimental laboratory, where they studied hypoxia caused by high-altitude flights. They experimented on Portillo himself: he breathed pure nitrogen. He described a kind of euphoria as he gradually lost consciousness. All in all, it was a friendly way of killing someone, he concluded, reflected in the calm reaction of laboratory mice to their euthanasia.

It doesn’t take my 40 years of experience in this dark world to see the nonsense of Portillo’s claim that guinea pigs have no idea that an all-powerful and vengeful government is plotting to kill them. A person whose euphoria had given way to panic would tear at their gas mask and howl in terror – and we would have to adopt a different protocol to protect witnesses from the horror of it all.

But what is most shocking is the extraordinary development of this new form of execution. Surely an American government shouldn’t choose to execute its citizens based on a television show?

So this week we came close to a human experiment on Miller, who was convicted of shooting dead three people in a senseless tragedy that happens all too often in the United States. Raised in extreme poverty in a house overrun by rodents, he spent family money on his father’s drug addiction. He was represented in court by a court-appointed attorney, who made it clear to the jury that he didn’t want the job.

All of this is unfortunately quite typical of the death penalty, where those without the death penalty get the punishment.

Maybe that doesn’t matter to some people. Portillo carefully and wirily interviewed New York University law professor Robert Blecker outside a jail. As Portillo outlined his proposal for a supposedly humane method of execution, Blecker showed growing disgust. “Punishment is meant to be painful,” he said. The idea that a murderer dies easily would be the “opposite of justice.”

Blecker must be a very superior person to wish torment on people he’s never met and knows so little about. I wonder if one day he’ll change his mind like Portillo did, given the multiple fallabilities that characterize the rest of us.

Irrespective of this, it has been stated in the Nuremberg Code (PDF) since 1947 that “no [human] Experiment should be conducted when there is reason to believe that death or disability will occur”. Perhaps we should accept that our grotesque human experiments should be left where they belong for centuries past.

The views expressed in this article are the author’s own and do not necessarily reflect the editorial stance of Al Jazeera.

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