The Death Penalty is Experiencing Technical DifficultiesDeborah Denno in Pacific Standard, October 29, 2012
October 29, 2012 • By Nick Welsh
LOS ANGELES DISTRICT ATTORNEY Steve Cooley is in a hurry to have Mitchell Sims put to death. You couldn’t blame Cooley if he felt frustrated. He’s seen the execution of Sims, a convicted triple murderer, delayed for six solid years, bogged down in a legal quagmire over whether California’s three-chemical lethal-injection sequence is a sufficiently humane method of killing someone. By the time the courts decide the issue, the state might not even be able to obtain the deadly drugs required. And to top it off, Cooley may be running out of time: this November, the state’s voters may decide to abandon the death penalty altogether.
Opponents in the Golden State have been trying to get rid of capital punishment for a long time, but this year’s ballot initiative is their most forceful effort in many years. It is headlined by Cooley’s onetime boss, former L.A. District Attorney Gil Garcetti, as well as law-and-order luminaries like Don Heller, another former prosecutor, who wrote California’s ballot language reinstating the death penalty in 1978, and Jeanne Woodford, who, when she was warden of San Quentin, presided over four executions. They argue the death penalty is a sham—and an expensive one that California can ill afford. Since 1978, taxpayers have shelled out $4 billion in executing only 13 condemned inmates. By contrast, they note, 57 have died of old age. And the initiative has momentum: in the past five years, four other states have done away with the death penalty. California’s death row—the nation’s largest, with 729 condemned inmates—could well be the next to be shut down.
IF THE DEATH PENALTY is meant for anybody, it’s Mitchell Sims. Back in January 1985, Sims—then 25—had just been promoted to a mid-management position at a Domino’s Pizza in West Columbia, South Carolina. Sims believed he deserved a bonus; his bosses thought otherwise. In December, Sims shot and killed two employees at a nearby Domino’s franchise. He and his girlfriend fled to California and took up lodging at a motel in Glendale. The next night, the couple telephoned a local Domino’s to order room service. When John Harrigan showed up with a pizza in hand, Sims robbed and hog-tied the 21-year-old, dumped him in the bathtub, and turned on the water. He gagged Harrigan by strapping a washcloth over his mouth, and wrapped a sock around his head to keep it there. Then Sims covered Harrigan’s head with a pillowcase and tied it tightly around the deliveryman’s neck with what the forensic literature called a “ligature.” Sims would later testify that Harrigan was still alive when he and his girlfriend left; but this homicide was never remotely a whodunit. When Harrigan’s body was discovered a few hours later, the lone mystery was whether he’d been strangled or drowned.
In 1987, Sims was sentenced to death. Sims was not, as he told the judge, “a nice person.” Jurors would hear how Sims’s sadistic stepfather repeatedly raped him as a young boy and made him have sex with his own mother. But they must have been more horrified by the creative cruelty Sims exhibited in the commission of his crimes. By 2006, Sims had exhausted all his appeals.
Debate over the death penalty all across the nation has been infused with a fresh sense of moral urgency. Death-penalty critics point out that 140 death-row inmates have been released because they were innocent—some of them exonerated by new DNA evidence—or improperly convicted. Recent reports have raised questions about the guilt of Troy Davis, who was executed in Georgia, and Cameron Todd Willingham, who was executed in Texas. In response to the fallibility of the legal process and the irreversibility of the punishment, Democratic and Republican legislators in Connecticut and Illinois have voted to abolish capital punishment in the past 18 months, following the lead of legislators in New Jersey in 2007 and New Mexico in 2009.
For Mitchell Sims, however, exoneration isn’t an option. Given the facts of Sims’s case, he’s not likely to become the poster child for the Innocence Project. Sims’s sole defense was that if he’d actually intended to kill Harrigan, he would have done so before leaving the motel room.
Keeping Mitchell Sims alive has been the work of skillful attorneys specializing in death-penalty appeals. Since 2006, these attorneys have persuaded a handful of key state, federal, and appeals judges that problems abound with the lethal injection of a three-chemical sequence. Given the battles over the death penalty now consuming California—and the nation—it’s questionable whether Sims, or anyone now on California’s death row, will ever be put to death.
IN 1977, Oklahoma’s chief medical examiner, Dr. Jay Chapman, was approached by a member of his state legislature seeking advice on humane methods of execution. The death penalty had just been reinstated by the U.S. Supreme Court after the historic four-year hiatus after which it had been held unconstitutional. That year, Utah had become the first state to execute a prisoner in the so-called modern era, when Gary Gilmore was shot to death by a firing squad of five marksmen standing behind a curtain 10 yards away. Utah’s brutally direct method provoked a wave of moral revulsion. The divide over the death penalty was still acute, as reflected in the Supreme Court’s starkly divided written opinions on reinstatement. As Chapman explained in a recent interview, his advice was sought so that Oklahoma could avoid the “national media circus” that had engulfed Utah during Gilmore’s execution.
Back then, Oklahoma executed its condemned prisoners via the electric chair, which, in the continuing effort to inflict death without undue spectacle, had supplanted the gallows. But the electric chair didn’t always deliver the quick death its champions claimed it would. Repeated jolts were sometimes needed to get the job done. In the process, some inmates were slowly cooked, and flames, on occasion, shot off the top of their heads. All but the most vengeful witnesses were horrified.
The shortcomings of the electric chair gave rise to the gas chamber, but that, too, proved less dispassionately clinical than hoped. Inmates writhed and strained against their straps. Suffering was visible. And the parallels with Nazi gas chambers were too obvious for comfort.
Eventually, thanks to Dr. Chapman, all other methods would give way to the antiseptic tranquility promised by lethal injection.
Chapman said he spent all of five days coming up with a procedure mimicking the steps already used to induce unconsciousness during surgical procedures. But to get the desired fatal result, he explained, he would “exaggerate them.”
First, sodium thiopental. It’s a knockout agent with quick effects that don’t last long, meaning patients must be given an ongoing dose lest they wake up mid-operation. Chapman urged they be given a continuous IV drip of the anesthetic to keep them under for the entire execution.
Chapman also included a paralytic agent, pancuronium bromide, used in many surgeries to keep the sedated from thrashing about. A cousin to curare, the poison was made famous by Amazonian tribesmen who used it on their arrows to paralyze their prey. Pancuronium, in immobilizing all the body’s muscles, can effectively stop the lungs from breathing. It also smothers any outward signs of distress that would trouble observers.
Pancuronium had been used—and not that long ago—to paralyze living animals so that surgeons could practice skills and techniques they would later use on human subjects. That was before the advent of animal-rights activism. But using sodium thiopental and pancuronium together is more fraught than it might seem. Every year, thousands of Americans report waking up mid-surgery, able to feel the pain but unable to cry out because of the paralytic drug. (Laws have been enacted in a majority of states banning the use of pancuronium bromide in animal euthanasia on humanitarian grounds, and requiring an overdose of a single barbiturate instead. Many of those same states, however, do use pancuronium in executing human beings.)
Lastly, Chapman recommended that the condemned be given an injection of potassium chloride, which induces a massive and sudden heart attack. If all else failed, this would do the trick.
In short order, Chapman’s protocol swept the death-penalty states. Some states gave inmates a choice of execution methods; but all of them used the three-chemical protocol, even if not exclusively. Although it originated in Oklahoma, lethal injection was first deployed in Texas in 1982. Not surprisingly, Chapman’s protocol did little to still the waters. Almost from the start, the new method elicited a steady stream of legal objections: critics have claimed the drugs can cause excruciating pain, and have cited reports likening the feeling to that of a liquid flame-thrower. Chapman said such reports are exaggerated for political purposes.
Every year, more than 30,000 Americans kill themselves—most of them, accidentally—with drug overdoses. So how hard can it be to administer such a demise intentionally?
Chapman insists it’s pretty easy, and “doesn’t take a rocket-science expert.” But even Chapman acknowledges problems. “There have been situations where someone points the needle in the vein towards the hand and not the body,” he said. “I can’t imagine anyone being that stupid.”
And that—according to Deborah Denno of Fordham Law School, one of the country’s top scholars of lethal injection, and Richard Dieter, of the Death Penalty Information Center—is the least of it. They cite the case of Missouri’s now-infamous Dr. John Doe, who presided over 54 executions. Dr. Doe, it turns out, had been the subject of 20 malpractice lawsuits and had privileges revoked by two hospitals. He was also dyslexic and frequently measured out less of the sodium-thiopental powder than the protocol called for, thus increasing the likelihood that the condemned were conscious when the other two drugs attacked.
In December 2006, Florida executioners fumbled with the vein of convicted killer Angel Diaz, sticking the needle in one side and out the other. A typical lethal-injection execution is supposed to take about 15 minutes; Diaz took 34 minutes to die. He was conscious for the first 25. Critics contended Diaz was tortured to death. Afterward, then-Governor Jeb Bush declared a moratorium on executions. In 2009, Ohio Governor Ted Strickland halted the execution of convicted killer Romell Broom after his executioners spent no less than two hours poking him 18 times. The prisoner “was helping them, he was in such pain,” said Denno. “He tried to kill himself. They even got the prison doctor in there, and they couldn’t kill him.”
THE YEAR 1999 was the high-water mark for executions in the United States: 98 inmates were killed. Since then, the yearly total has been cut in half. All the while, death-penalty supporters continue to rail against what they describe as a self-serving cottage industry of death-row lawyers specializing in the art of delay and thwarting the law of the land. That cadre of anti-death-penalty lawyers, in opposing the three-chemical method, have objected that no science exists to back up claims that Chapman’s protocol is painless.
As of 2005, these concerns could no longer be dismissed as hypothetical. Three American medical professionals teamed up that year with an anti-death-penalty attorney and published a scholarly study, in the British medical journal The Lancet, concluding that 21 of the 49 executed inmates who were studied had sodium-thiopental concentrations in their blood “consistent with consciousness.” In plainer language, the authors stated: “It is possible some of these inmates were fully aware during their executions.”
But the Lancet article was nothing compared with the damage done to the three-chemical protocol by Federal Judge Jeremy Fogel in December 2006. That’s when Fogel—in response to an appeal filed on behalf of a condemned California inmate—declared California’s lethal-injection system “broken.” Fogel’s long list of deficiencies included poor visibility in the execution chamber, a place so dark that one doctor reported needing a flashlight to fill out records; and lack of training for the execution team, with one nurse reporting she’d received no instruction on how to mix the chemicals. Based on autopsy reports, Fogel expressed serious doubts that breathing had stopped when expected in six of the 11 inmates executed. This, he said, raised “concerns that inmates may have been conscious.” Fogel recommended all executions be stopped until the system was “fixed”; capital punishment in California ground to a halt.
Fogel gave the Department of Corrections two relatively quick fix-it options: have medically certified anesthesiologists participate in the proceedings to ensure that the condemned are given sufficient quantities of sodium thiopental that they don’t ever wake up; or switch to a one-drug method. Fogel made it clear that if California switched to a one-drug protocol, the concerns about cruel and unusual punishment would be obviated, and executions could recommence. That marked the first time in the history of lethal injection that any judge—anywhere in the country—had weighed in so dramatically.
California prison officials responded in another way: by developing for the three-chemical protocol a much more detailed set of guidelines, designed to address Fogel’s concerns. Meanwhile, Fogel took a leave from the federal bench; to date, no judge has signed off on those improvements.
And while the department did hire two anesthesiologists, both quit shortly before the state’s next execution was scheduled. Controversy still exists as to why, but they apparently got cold feet after learning that they might have to play a more active role than merely recording the time of death. At the time of Fogel’s ruling, no state in the nation had yet switched to a one-drug send-off.
According to Deborah Denno, states like California were loath to contemplate new execution methods. Doing so, she suggested, would be a tacit admission of possible problems with their three-drug protocol. Any deviation from the status quo, she added, would have opened California’s execution protocol to new legal challenges.
Then, in 2008, the Supreme Court upheld the constitutionality of Kentucky’s three-drug death penalty in what’s known as the Baze decision, after the name of one of the condemned inmates who brought the suit. This meant that as long as California’s execution teams adhered to a three-drug protocol similar to Kentucky’s, their death penalty was not unconstitutionally “cruel and unusual.” If California corrections officials were reluctant to experiment with new execution methods before Baze, they were absolutely opposed afterward.
The Supreme Court “wanted to quell all the chaos, with Baze,” said Denno, “but since Baze, things have only gotten more chaotic than ever.” Before Baze, she noted, Jay Chapman’s was the one and only lethal-injection protocol. But since Baze, five states—Ohio, Idaho, Texas, Washington, and Arizona—have shifted tactics, embracing the one-drug process. Combined, these states have dispatched 26 condemned prisoners using the new methods. Four other states—Kentucky, Georgia, Missouri, and South Dakota—have announced they’ve changed their protocols, but have yet to actually use a new method.
In part, those states are responding to a twist that could render all these machinations moot: it turns out that the days of the three-chemical compound are numbered. Companies that manufacture the fast-acting anesthetic sodium thiopental—a key ingredient—no longer produce it in the United States. European manufacturers, citing moral and political concerns with capital punishment, have refused to sell the drug to prison administrators in the United States. Now state executioners are in a desperate scramble to obtain supplies from other foreign sources. U.S. hospitals are experiencing collateral difficulties, reporting shortages of the drug. And earlier this year, Federal Judge Richard Leon ruled that the Food and Drug Administration could not allow sodium thiopental to be imported. The judge also ordered all states to hand over for such screening any sodium thiopental they’d already imported. The FDA has challenged that ruling, as have attorneys general from 15 states. A few states publicly refused to give up their supply, California included. By 2014, by some estimates, the death-penalty drugs California has on hand will expire anyway.
IN THE PAST TWO YEARS, the states that adopted procedures in which condemned inmates are put to sleep forever with a single barbiturate have mostly switched to the sedative pentobarbital (Missouri opted for the drug that killed the singer Michael Jackson, propofol). In July, Texas exacted its first single-drug execution on 33-year-old Yokamon Hearn. Georgia has just announced plans to switch to a single drug. Even Kentucky—which established the Chapman protocol as the constitutional gold standard—is jumping ship. Arizona recently adopted a one-drug protocol, using the longer-acting barbiturate pentobarbital.
As Judge Fogel noted, switching to a single drug would solve California’s problem almost overnight. But only earlier this year did Attorney General Kamala Harris publicly agree to begin looking into the feasibility of the one-chemical path. In response, death-penalty advocates claim that Harris and California Governor Jerry Brown, as well as former Governor Arnold Schwarzenegger—despite their public pledges to uphold the death penalty—personally oppose capital punishment and have embraced every obstacle that’s come their way.
“I don’t see any point of ‘looking into it.’ It’s already been looked into,” objected Kent Scheidegger, the legal director for the Criminal Justice Legal Foundation, in a recent interview. A longtime advocate for the death penalty in California, Scheidegger—who is working with Steve Cooley and Deputy District Attorney Michele Hanisee on the Sims challenge—expressed bewilderment that California corrections officials have insisted on pursuing the three-chemical path when it clearly is the path of maximum resistance. “It’s an abuse of discretion to choose the path that leads to obstruction,” he said. Whatever your position on the death penalty, he’s hard to disagree with.
This May, Cooley and Hanisee took a new tack: they filed a motion in Los Angeles Superior Court that Sims be given a lethal overdose of a single barbiturate. This legal action may be the courtroom equivalent of a Hail Mary pass. In the never-ending twists and turns of the legal morass that is capital punishment, Attorney General Harris fought back, saying that only the state corrections department has the authority to determine the method of execution. She added that Cooley’s approach violated the court order that put all executions on ice until a new protocol—one giving due consideration to the one-drug option—was adopted. In September, Judge Larry Fidler agreed with Harris.
DENNO AND CHAPMAN, who maintain a long-distance adversarial conviviality, agree that even if all of the death-penalty states—now numbering 33—adopted the one-drug protocol, not much would be settled. “It doesn’t matter what method you use, people will find some argument against it,” said Chapman. Denno regards the one-drug protocol as an improvement, but concedes that it “just raises new questions.”
For example, Denno pointed out, executing with the one-drug method takes longer. Inmates have been known to shudder and shake, disrupting what Chief Justice John Roberts described in the Baze ruling as “the dignity” of the procedure. (Of all methods of execution, Denno said, she found the firing squad the most defensible. It’s quick and definite, she said. It satisfies the public demand for punishment, while assuring the condemned a swift, straightforward exit.)
If California voters pass the death-penalty ban in November, the case, and the entire question of execution method, will be rendered moot. Public-opinion polls show that although 62 percent of respondents statewide still support the death penalty, that figure is the lowest it’s been in years; and when voters are given the option of sentencing an offender to life without the possibility of parole, support for the death penalty slips below 50 percent.
Supporters of the ban have raised nearly $5.4 million; opponents have raised more than $200,000. Death-penalty advocates find themselves, unaccustomedly, on the defensive. As tuition rates rise at the University of California campuses, and community colleges turn students away, voters appear inclined to scrutinize the cost of punishment. However you do the math—$4 billion spent on only 13 executions—the status quo ain’t working.
Today, Mitchell Sims is 52 years old. The average life expectancy for a white male in the United States is 76. Given the legal challenges confronting California’s death-penalty protocol—and the state’s overwhelming budget woes—Sims will likely live another 24 years.