I began my work against the death penalty in the United States in 1981. It would be reasonable to suppose that by now, four decades on, I would have seen it all.
Not so. On September 22, Alabama lost a round in a ghoulish battle to execute Alan Miller. Initially, they promised a federal judge that they were ready to experiment with a novel method — nitrogen hypoxia (essentially, suffocating him by replacing oxygen in the air with pure nitrogen). The state then had to backtrack, saying they were not sure they knew how to do it, and so they would kill him by lethal injection.
In one of those midnight battles with which I am achingly familiar, the Supreme Court voted five-to-four to let the Alabama executioners go ahead with their ritual sacrifice, but by then it was too late for their probing needles to find a vein. So, Miller is safe for a short while, though doubtless Alabama will set another date soon.
In one sense his close — and temporary — escape is a metaphor for everything that is wrong with the death penalty. The inspiration for dabbling with nitrogen hypoxia as a new “kinder, gentler” method of execution is, bizarrely, a television programme recorded several years ago by Michael Portillo, former shadow chancellor for Britain’s Conservative Party.
In the 1980s, then a member of parliament, Portillo voted to reintroduce capital punishment to the United Kingdom. The bill was defeated. His ardour for executions faded as he learned how many innocent men and women had been sentenced to die. When the subject came up again in the 1990s, he switched his vote. Thankfully, the UK never mustered a majority to step backwards to rejoin the execution governments.
Meanwhile, in 2008, Portillo made a Bioreports documentary titled How to Kill a Human Being, focused on making any executions as humane as possible. For his film, he toured around the US considering — and rejecting — accepted execution methods, each of which he found barbaric. There was the electric chair: Jesse Tafero had a strong claim of innocence (his co-defendant, Sunny Jacobs, was later freed and now lives in Ireland). Tafero’s head caught fire when Florida electrocuted him in 1990. Portillo illustrated this in his documentary by running 2,400 Volts through a dead pig.
The gas chamber proved no better. The Mississippi Department of Corrections used Zyklon B for their executions. They allowed a Bioreports crew to film them testing this out on a black bunny rabbit, which died in agony (they were preparing to kill my African-American client Edward Earl Johnson). We sued on the 50th anniversary of the liberation of Auschwitz to put an end to this barbarism.
Next the proponents of the lethal injection “three-drug cocktail” claimed it was a more civilised way to kill someone. It was advertised as nothing more than the kind of anaesthetic applied every day in thousands of hospitals.
Yet if there is one rule, it is that the history of executions is full of false promises. They were ignoring an obvious problem: the Hippocratic Oath forbids medical professionals from “doing harm”. The task of inserting the needle was delegated to technicians who had little skill. Hence even Dr Jay Chapman, who invented the three-drug cocktail, decried botched executions carried out by incompetent people who could not find a vein.
By the way, the “three drugs” are a sedative, a paralytic and a poison. Why the paralytic? Because it prevents the witnesses from seeing the victim thrash in pain when the sedative fails. Sometimes the paralytic agent failed as well, and the victim thrashed around in pain. All of this became increasingly problematic when the drug companies announced that they did not want their life-saving medicines used to kill people.
In short, none of these methods satisfied Portillo. They were not, he said, humane. Thus far, I can agree with him, having watched six of my clients die in front of me, two executed by each system.
Therefore, Portillo took his quest to an experimental laboratory run by the Dutch air force, where they were studying the hypoxia caused by high-altitude flying. They experimented on Portillo himself: he breathed in pure nitrogen. He described a kind of euphoria as he gradually lost consciousness. All in all, it was a kind way to kill someone, he concluded, as reflected by the calm response of laboratory mice to their euthanasia.
It does not take my 40 years of experience in this dark world to see what nonsense Portillo’s claim was: experimental mice have no idea that an omnipotent and vengeful government is planning to kill them. A human being, his euphoria replaced by panic, would tear at the gas mask, and howl in terror – and we would have to adopt another protocol to protect witnesses from the horror of it all.
Yet it is the extraordinary progenesis of this new form of execution that is most shocking. Surely an American government should not elect to execute its citizens based on a television programme?
Thus it was that this week we found ourselves on the cusp of conducting a human experiment on Miller, who was convicted for shooting three people – a senseless tragedy of a nature that takes place far too often in the US. He grew up in extreme poverty in a house overrun by rodents, the family money spent on his father’s drug habit. He was represented at trial by a court-appointed lawyer who made it clear to the jury that he did not want the job.
All of this is, sadly, fairly typical of capital punishment, where those without capital get the punishment.
Perhaps none of this matters to some people. Portillo interviewed New York University law Professor Robert Blecker, wary and wiry, outside a prison. As Portillo outlined his proposal for a supposedly humane method of execution, Blecker exhibited a rising disgust. “Punishment is supposed to be painful,” he said. The idea of a killer dying easily would be the “opposite of justice”.
Blecker must be a very superior person to feel comfortable wishing agony on people he has never met, about whom he knows so little. I wonder whether he will one day change his mind, as Portillo did, in the face of the diverse fallibilities that characterise the rest of us.
Regardless, since 1947, the Nuremberg Code (PDF) has stated that “no [human] experiment should be conducted where there is reason to believe that death or disabling injury will occur”. Perhaps we should accept that our grotesque human experiments should be left in centuries past, where they belong.
The views expressed in this article are the author’s own and do not necessarily reflect Bioreports’s editorial stance.