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Executions and Risk of Pain

Judge Frost in Ohio has denied a temporary restraining order against the use of Ohio's midazolam/hydromorphone protocol in the case of Dennis McGuire, scheduled for execution January 16.  Judge Frost considered the claim on the merits but served notice that holding claims to the last minute may be grounds for denial in the future.

The Court will not deny McGuire consideration of his merits arguments today, but the parties and counsel in this litigation long ago all but exhausted the patience of this Court. Other plaintiffs seeking a stay in the future should note this point and make informed litigation choices accordingly.
An important point here is that the constitution does not guarantee a murderer a painless death or freedom from any risk of pain.  We don't intentionally inflict physical pain as punishment any more, although the same Congress that proposed the Eighth Amendment did prescribe whipping.  All of the changes we have made to methods of execution since then have been for the purpose of reducing pain and risk of pain, but the murderer is still not entitled to a guarantee.
The evidence before this Court fails to present a substantial risk that McGuire will experience severe pain. This is not to say that the Court is convinced that the execution will be pain free or even complication free. There is always a possibility of human error or unfortunate misadventure. There is also the possibility that in the earliest moments of his execution, McGuire could experience an obstruction. This Court credits the evidence that he has characteristics suggesting, if not establishing, a propensity for possible obstruction. The simple possibility of obstruction leading to air hunger of which McGuire would be cognizant does not amount to a sufficient probability, however, and the weight of the evidence leads to the conclusion that the hydromorphone overdose employed in Ohio's protocol will most likely offset the risk factors and preclude the experience of air hunger. Thus, although the Court is not without concern over what could transpire during McGuire's execution, the applicable law looks at the degree of risk and the amount of pain involved. The only fair evaluation of the evidence here leads to the conclusion that the degree of risk that Ohio's protocol presents is acceptable within the contours of the Constitution.

The fact remains that most of us are going to suffer more pain when we die that nearly any executed murderer does.  One person who suffered far more pain than McGuire will is Joy Stewart.  She was 22 and very pregnant when she was assaulted, sodomized, and stabbed to death to eliminate her as a witness.  We should keep in mind the pain, humiliation, and terror she felt as we read the whining of McGuire's lawyers.


"We should keep in mind the pain, humiliation, and terror she felt as we read the whining of McGuire's lawyers."

Yes, we should. The sad thing is that judges, who should know better, still allow these bogus arguments to stay executions.

I would say it's less whining than just routine lying.

Could the proposal below offer a practical and long-overdue solution to this mess?

Wyo. lawmaker proposes firing squads for execution

By BEN NEARY, Associated Press

CHEYENNE, Wyo. (AP) — A Wyoming lawmaker is pushing to allow use of the firing squad to execute condemned state inmates if constitutional problems or other issues ever prevented the state from using lethal injection.

Sen. Bruce Burns, R-Sheridan, said Monday that state law currently calls for using a gas chamber if lethal injection is unavailable.

"The state of Wyoming doesn't have a gas chamber currently, an operating gas chamber, so the procedure and expense to build one would be impractical to me," said Burns, a member of the Senate Judiciary Committee.

"I consider frankly the gas chamber to be cruel and unusual, so I went with firing squad because they also have it in Utah," Burns said. He's introduced the bill for consideration in the legislative session that starts Feb. 10 in Cheyenne.

"One of the reasons I chose firing squad as opposed to any other form of execution is because frankly it's one of the cheapest for the state," Burns said. "The expense of building a gas chamber I think would be prohibitive when you consider how many people would be executed by it, and even the cost of gallows."

Burns said his bill addressed the possibility that the state could have to find a substitute for using lethal injection because a number of states are running short of the chemicals used for lethal injection.

In Missouri, for example, the state auditor is undertaking a probe of the Missouri Department of Corrections over its use of a new death penalty drug. That state for years had used a three-drug blend to perform executions until pharmaceutical companies stopped selling those drugs to prisons.

Missouri has executed two inmates in recent months using the sedative pentobarbital and plans a third execution later this month. The drug comes from a compounding pharmacy in Oklahoma not licensed to do business in Missouri.

The pace of inmate executions is much slower in Wyoming, which has only one inmate on death row and last executed an inmate in 1992.

Inmate Dale Wayne Eaton, 68, is challenging the constitutionality of the death sentence he received in 2004 for the rape and murder of 18-year-old Lisa Marie Kimmell of Billings, Mont. The Wyoming Supreme Court already has upheld Eaton's conviction, but a federal court has put the execution on hold for the past several years while it considers his appeal.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said Monday he believes Wyoming could face constitutional challenges if it tried to use the firing squad as its only method of execution.

Dieter said Utah has offered inmates the choice of being executed by firing squad but said the state is phasing out the punishment. He said mandating the use of the firing squad if lethal injection were unavailable, as Burns seeks to do, would be a different matter.

"That I think would raise concerns in the federal courts, perhaps the state courts, about whether and unusual, perhaps a cruel and unusual punishment is being inflicted," Dieter said. "I don't know how the ultimate ruling would come down, but I think there would be delays as that case got considered and it might even go up to the Supreme Court. This would be unusual. This is not what Utah has done."


Where it is legal, what drugs are used for physician assisted suicide? It would stand to reason those are painless. At least I would assume so.

According to a 2011 article on Medscape, "Currently in Oregon, secobarbital is the medication most commonly prescribed for physician-assisted suicide, followed by pentobarbital."

Pentobarbital is the drug of choice for lethal injection now. States turn to others when the supply is blocked.

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