By Matt Hadro
Washington D.C., Mar 14, 2017 / 02:20 am
Recent "botched executions" resulting in painful deaths for inmates have stirred controversy over the use of the death penalty. But could capital punishment also be rejected on the grounds that it amounts to psychological torture?
That is the case that University of Baltimore law professor John Bessler makes in his new book, "The Death Penalty as Torture: From the Dark Ages to Abolition."
"The U.S. needs to start looking at the psychological aspect of the death penalty, in terms of the psychological pain or suffering, because that is part and parcel of the definition of what is torture is, as defined by the U.S. ratification of the Torture Convention," Bessler told CNA in an interview.
Capital punishment is not legal in 19 states, and four states have a governor-imposed moratorium on the death penalty. Of the 31 states where it is used, only four – Georgia, Texas, Florida, and Missouri – account for 85 percent of executions in the U.S. since 2013, according to the Death Penalty Information Center.
The overall number of executions in 2016 fell to 20, its lowest number since 1991 and down from 28 executions in 2015, the Death Penalty Information Center noted. This continued a long decline in the number of executions from 1999, when the number was 98. The Pew Research Center has also reported a continuing drop in public support for the death penalty.
Lethal injection is the primary method of execution in the U.S., but actions by drug companies and the European Union – which bans the use of the death penalty – to prevent drugs to be used for capital punishment have significantly factored into the decline in the number of executions, the Death Penalty Information Center says.
Drug companies including Pfizer, Akorn, and Par have moved to prevent or limit the sale of drugs to be used in capital punishment. The European Union has limited the export of drugs that are also used in executions in the U.S.
As a result, states are finding it harder to obtain drugs for lethal injections and they are resorting to other means of obtaining the drugs. In some cases, they imported them from a supplier in India, as BuzzFeed News found in 2015, as Arizona and Texas ordered shipments of the drug sodium thiopenthal which were blocked by the Food and Drug Administration when they reached the U.S.
States have also legalized other methods of execution if drugs for lethal injection are not available, or if that method is ruled unconstitutional.
Utah in 2015 allowed death by firing squad to be used for capital punishment. Oklahoma has legalized the gas chamber for such instances, and Tennessee the electric chair.
Arkansas recently scheduled eight executions in 10 days in April, before its supply of Midazolam, the sedative used in the execution process, expires.
However, the current processes of lethal injection have invited controversy for the physical pain they can inflict on subjects, most notably in "botched executions" like in Oklahoma in 2015 where an inmate was given a sedative and was supposed to be unconscious, but writhed in pain once the lethal drugs were administered before dying of a massive heart attack.
"The execution of Clayton Lockett really highlights the brutality of the death penalty," Archbishop Paul Coakley of Oklahoma City responded to the botched execution. "And I hope it leads us to consider whether we should adopt a moratorium on the death penalty or even abolish it altogether."
Lethal injection is, in some states, a three-step process, with the first step involving a sedative meant to render the patient unconscious before the following lethal drugs are administered.
If their sedative does not work properly in the lethal injection process, the physical pain that these inmates could endure from the chemicals would definitely constitute torture, Bessler argued.
In the 2015 case of Glossip v. Gross, the Supreme Court ruled 5-4 against the inmate Richard Glossip who claimed that the sedative Midazolam, used by Oklahoma in executions, was not certain to work properly and could result in a painful execution that violated the Eighth Amendment's prohibition on cruel and unusual punishment.
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Justice Sonya Sotomayor dissented and argued that Midazolam might not work as intended and thus would not sufficiently dull the pain inflicted on the subject's body by the ensuing drug potassium chloride.
As a result, the painful effect of the drugs could essentially result in "the chemical equivalent of being burned at the stake" if Midazolam does not work, Sotomayor stated. The inventor of Midazolam, Dr. Armin Walser, has stated that he does not want it used for executions.
Recent Supreme Court cases on the death penalty have shown an "obsession with will there be physically excruciating pain" for an inmate at the time of death, Bessler noted.
However, the psychological state of inmates awaiting death could also be torturous, he added: "the helpless of the condemned person on the gurney is one of the elements of torture."
And it was Justice Stephen Breyer's dissent in Glossip that "really does start thinking about the psychological aspect of what we're doing with use of the death penalty," Bessler noted.
First, Breyer wrote of how prisoners on death row are kept in solitary confinement for most of the day – a practice that, if carried out over weeks or months, could damage the psyche of an inmate. Breyer cited studies that show prolonged solitary confinement to cause serious psychological problems like hallucinations and stupors.
And inmates on death row can often be kept in solitary confinement. However, "the dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out," Breyer wrote.
And this condition can be prolonged for years or even decades due to modern policies regarding death sentences. Laws require reviews of death sentences and evidence of crimes, and appeals can be filed, but this extends the time inmates spend on death row waiting for their execution.
The average time between sentencing and execution has steadily grown to its peak of 198 months in 2011 – or 16 and a half years – before falling slightly to 190 months in 2012, the Death Penalty Information Center noted. In one case of Brandon Jones, executed in February of 2016 by Georgia, he was on death row for 36 years after receiving a death sentence in 1979.
"Psychologists and lawyers in the United States and elsewhere have argued that protracted periods in the confines of death row can make inmates suicidal, delusional and insane," the Death Penalty Information Center says, noting that some experts have even called such a condition the "death row phenomenon."
Breyer, in his dissent, had referenced an 1890 Supreme Court opinion that found "when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it."
When considering whether the death penalty meets the criteria for cruel and unusual punishment barred by the Eighth Amendment, the Supreme Court must also consider the possibility that it is psychological torture, Bessler insisted.
"Even if you could guarantee a pain-free execution," he said, "the concept of torture includes psychological torture in the modern era, and that's something that the courts in the United States have not yet wrestled with head-on, and they need to."
Bessler argued that in private cases, under "common parlance" when a murder is described as a "torture murder," the factor "turns a first-degree murder into a 'torture murder' is the awareness of one's impending death."
One example of this is the 2008 case of ex parte Donald Deardorff, he said, where a murder victim had been "threatened with death," bound, confined in a closet, and forced to walk with a hood over his head before being shot to death. The Alabama Supreme Court said that the whole ordeal preceding the murder was "psychological torture."
With the death penalty, "you kind of have that issue on steroids, because the person has an awareness of their impending death for literally decades," Bessler added. "And in a lot of cases you're seeing multiple death warrants being issued. There's cases where more than ten death warrants have been issued for a given individual."
Article 1 of the United Nations Convention Against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person," and the purpose of which includes their punishment.
The inclusion of severe "mental suffering" in this definition, as well as any such suffering inflicted as punishment, makes it clear that the psychological anguish an inmate can experience on death row qualifies as torture, Bessler insisted.
South Africa, European countries, and 19 states do not use the death penalty, he said, and the rest of the U.S. is "really kind of behind the times in terms of thinking about this as a human rights violation." The countries that are routinely executing people, he added, mostly make up "kind of a rogues gallery of human rights abusers," including Iran, Iraq, Yemen, and China.
And, he added, both international law and U.S. law regard a "mock execution" as an "act of torture." If this is the case, he said, "it's hard to see how a real execution should not also qualify under that legal rubric."
