CURRENT COMMENTARY / DEATH PENALTY Human Experimentation On America’s Death Rows By LARRY M. ELKIN

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Syringe gauge photographed by and courtesy of Joe Flintham.

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Last week, Clayton Lockett was scheduled to die of lethal injection in Oklahoma, and the lethal injection technically did cause his death.

He was not, however, supposed to die of heart failure brought on by an experimental cocktail of three drugs, incorrectly administered. Lockett’s disturbing, headline-making death has drawn new attention to the ongoing struggle over capital punishment in America, both in how the punishment is administered and as to why the death penalty is still legal at all.

The reaction to the most recent instance of an execution gone wrong is a stark reminder of the debate’s global context. The world is aghast, not only at the Oklahoma incident, but that a country otherwise respected for its commitment to justice and human rights can continue to execute criminals at a pace only matched by some of the least-just regimes in the world.

Observers might as well stop trying to make sense of the situation, because it is senseless.

The United States’ use of the death penalty grows even more senseless with time. As medical professionals and reputable pharmaceutical companies decide that putting people to death is fundamentally in conflict with their missions and values, the task of administering capital punishment is falling to amateurs – namely the people who run America’s death rows, and the murky compounding pharmacies to which they increasingly must turn for the drugs with which to do it.

Even some advocates of the death penalty have argued that lethal injections, especially, are a poor choice of method. Kent S. Scheidegger, legal director at the Criminal Justice Foundation, told The New York Times, “I have never liked the idea of medicalizing executions, where we have a procedure now requiring people who perform executions to have medical skills.”

In the absence of those skills, grisly deaths like Lockett’s are a recurring phenomenon. A prolonged execution in Ohio earlier this year also raised questions over whether the procedure violates the Eighth Amendment prohibition of cruel and unusual punishment. Last year, a prisoner in South Dakota was executed using a fungus-contaminated batch of the drug pentobarbital.

The fact that the United States is the only G-7 country still to execute its criminals at all is shameful enough. The shame is compounded by the increasing use of untested drug combinations to do the job. Domestic manufacturers are halting production of traditional compounds, and international suppliers in countries that oppose the death penalty often refuse to export them here. Instead of leaving lethal injection behind, some states like Oklahoma have turned to new and untried pharmaceutical cocktails.

When death row inmates have sued to protest being used as test subjects and to try to secure more information about drugs’ sources and purity, states have often responded by passing secrecy laws that allow them to keep the drugs’ sources and chemical makeup hidden, claiming that revealing the names of suppliers would jeopardize the relationship. But when states turn to new combinations or untried dosage levels, they are essentially using condemned prisoners as guinea pigs.

If the activities of Nazi doctors, who experimented on concentration camp prisoners without their consent, were crimes against humanity, how are these exercises in on-the-fly capital punishment different? And how do the people who administer these drugs, or authorize their application, sleep at night in 2014 knowing that in a decade or two, public opinion could easily turn on them and demand an accounting?

What governor, in good conscience, could sign a death warrant today knowing the outcome may be a spectacle such as we recently saw in Oklahoma?

We have debated capital punishment in this country on a national level for 50 years, almost concurrently with the expansion of our national commitment to civil rights. The two are irreconcilable. As Ryan Kiesel, the executive director of the American Civil Liberties Union’s Oklahoma office, said in a statement, this is not simply about the certainty of prisoners’ guilt. He went on to say, “Rather, it comes down to whether we trust the government enough to allow it to kill its citizens, even guilty ones, in a secret process.”

One mistaken application of the death penalty is a wrong that can never be righted. One botched application of a lethal injection is a form of torture against which the entire civilized world now recoils. Lockett’s death was not the first fitting that description. The only justification we have for this continued, state-sanctioned killing is that the public – or at least an element of the public – cries out for it.

That is not a good enough reason.

Until such time as a future Supreme Court decides that the death penalty is unconstitutional in all circumstances, our best defense may be the knowledge that someday governors and other officials responsible for this depravity may be called to account. The combination of that knowledge and the possibility that any death warrant might end in an outrage like the one in Oklahoma should give governors pause in the 32 states where capital punishment remains legal for now.

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, N.Y., in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, N.Y., in 2002. The firm expanded to Fort Lauderdale, Fla., in 2005 and to Atlanta in 2008. 

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eHeziCURRENT COMMENTARY / DEATH PENALTY Human Experimentation On America’s Death Rows By LARRY M. ELKIN

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