When Lethal Injection Becomes Torture

Yesterday, April 29, 2013, in the execution chamber of the Oklahoma state penitentiary in McAlester, OK, Clayton D. Lockett was put to death, or, better stated, tortured to death. His execution did not go according to plan and was horribly botched by the state prison officials in attendance resulting in agonizing pain and suffering at the hands of the state officials charged with the execution.  According to published reports, the State of Oklahoma was for the first time using a three drug “cocktail” in which the drugs to be administered were “midazolam” followed by “vecuronium bromide” and ending with “potassium chloride.”

Witnesses described Lockett as convulsing and writhing on the gurney, as well as struggling to speak, before officials blocked the witnesses from seeing anything else by pulling down the blinds to the execution chamber and announcing that there had been a “vein” failure. Lockett’s writhing in pain went on for some three minutes after the first drug was administered. In total he lasted 16 minutes without being pronounced dead, which precipitated the lowering of the blinds and a halting of the execution.

Bizarre as this set of facts may sound, it is not the first reported case of a botched execution by lethal injection. The case of Dennis McGuire in Ohio was widely reported after his execution in January, 2014 also involved his being able to speak after the administration of sedatives and his dying declaration that, “I feel my whole body burning…”  Or the case of Joseph Clark, also in Ohio, in which the execution was reported to have taken some 90 minutes during which, also after administration of sedating drugs, the condemned man was heard saying, “it don’t work. It don’t work.” And in yet another case of a botched execution, Angel Diaz in Florida agonized for 34 minutes and only succumbed after a second IV was inserted and drugs re-administered.  During this entire ordeal, according to published reports, Diaz continually appeared to mouth words.

The Eighth Amendment to the United States Constitution provides that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Additionally, there is little doubt that the US government is bound by the general jus cogens principle of international law  that states unequivocally that torture is illegal. Torture is expressly prohibited in the Universal Declaration of Human Rights (UDHR) (1948), The American Convention on Human Rights (ratified by the US in 1977), the International Covenant on Civil and Political Rights (ratified by the US in 1992) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratified by the US in 1990). The United States Government has certain legal obligations to ensure that they are not participating in activities that can be defined as torture. By experimenting with different drug combinations and refusing to divulge the exact drugs used at each execution the states are effectively using human beings as Guinea Pigs in the search for an effective means for bringing about death. Until the right drug combination is found more people will continue being tortured in the process.

There is no doubt that Clayton Lockett, Dennis McGuire, Joseph Clark and Angel Diaz were all tortured during their executions in violation of the Eighth Amendment to the United States Constitution and universally recognized principles of international law.  The case of Clayton Lockett is just the latest indication that an immediate moratorium on all executions should be put in place until appropriate medical studies may be undertaken to ensure that those put to death are not tortured to death.

By:  Ivan E. Mercado


By: Ivan E. Mercado (guest writer to the blog)

Since August 21 2013, when chemical weapons were purportedly used in Syria on the civilian population in the rebel-controlled Ghouta area on the outskirts of Damascus, the world has been witness to an international joust between old Cold War enemies. Alost immediately after the first reports of the use of chemical weapons, President Barack Obama called it a “big event of grave concern” that would significantly alter the US calculation with regards to the conflict. By August 24, President Obama and British Prime Minister David Cameron jointly stated that the attack, which they were placing at the feet of Syrian President Bashar al-Assad’s forces, merited a “serious response.” And the drum beat for military action continued to grow with each passing day.

On August 29, Mr. Cameron took his case for military intervention in Syria to the British Parliament and in a stunning reversal his motion for authorization to use force was defeated. Mr. Obama, however, seemed unfazed and thereafter turned to another Cold War ally, France. President Françoise Holland manifested France’s willingness to take affirmative action to make sure such attacks did not occur again.

The White House made public a U.S. Government Assessment on the use of chemical weapons in Syria which stated that it had “high confidence” that the Syrian government was responsible for the use of chemical weapons. Secretary of State John Kerry, in an address that coincided with the release of the report, also said that the Syrian regime had used chemical weapons “multiple times” during the course of the past year. Kerry went on to repeat that planning for military action was underway.

However, on August 31, 2013, President Obama told the American people in a televised address that he would seek Congressional approval for a limited but significant military strike against the Syria government. Obama said that the attacks would be limited to deterring additional chemical weapons strikes and that ground forces would not be used. Obama would ultimately agree not to seek a vote in Congress, apparently fearing a defeat similarly to David Cameron’s in Great Britain.

Sensing an opportunity to help its ally Syria in the shifting sands of public and international opinion, Russian Foreign Minister Sergey Lavrov announced a Russian proposition whereby Syria would agree to place its chemical weapons under international control and dismantle them, and the United States would agree not to conduct a military strike on the country. Prior to the Russian announcement, Secretary of State Kerry, speaking in the United Kingdom, suggested that if the Assad regime turned over all of its chemical weapons to the international community “without delay,” a military strike could be averted. Speaking to media outlets after Secretary Kerry, President Barack Obama said that the United States would consider the plan.

September 10, 2013: Syrian Foreign Minister Walid al-Moallem said that the Assad regime welcomed discussion on Russia’s plan to give up Syria’s chemical weapons and join the Chemical Weapons Convention. President Barack Obama, French President François Hollande, and British Prime Minister David Cameron discussed how to implement the plan through the UN Security Council, with France beginning to draft a resolution based on the Russian proposal, but with stipulations that force be authorized under Chapter VII  of the UN Charter if Assad fails to implement the provisions of the resolution.

U.S. Secretary of State John Kerry and Russian Foreign Minister Sergey Lavrov appeared to reach an agreement on a comprehensive plan for the accounting, inspection, control, and elimination of Syria’s chemical weapons. The plan requires Syria to provide a full declaration of its stockpile “within a week” and provide the Organization for the Prohibition of Chemical Weapons (OPCW) and the UN access to all chemical weapons sites in Syria. The plan calls for the OPCW inspectors to complete their initial inspections by November and calls for the destruction of the stockpile of chemical weapons and chemical agents by the first half of 2014.

As of today, the main sticking point is the instance by the US and France to add language that the UN Security Council should impose measures under Chapter VII of the UN Charter for noncompliance with the agreement by Syria. The concern specifically relates to Article 42 which allows for “tak[ing] such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” This Russians and the Syrians see it as an end-run toward UN authorization for military action, which presumably could not be obtained in the Security Council given the current situation. And here we sit, waiting to see how events continue to develop.

One question now is who has won this game of Cold War brinksmanship? Syria, Russia, the US, France, the Insurgents? In looking at this one must consider what prompted this month long saga—a heinous attack using the most barbaric of weapons nerve gas, Sarin Nerve Gas. As with the Cold War itself we may not know the losers and winners for many years to come and the people of Syria will likely not get justice for the war crimes committed in Ghouta and elsewhere by both sides. In any event, it does not seem like Assad’s political position has worsen after the attack.

Next, should the US and its allies have invoked Chapter VII without a UN resolution and simply attacked Syria immediately after 21 August 2013? I ask this in the context of how the world should respond in reaction to the most atrocious international crimes, e.g. genocide, mass killings, forced internments, etc. Are the negotiations a sign that the international community is headed in the right direction?  or are there any parallels to the appeasement of the Nazis or the inaction in Rwanda?