By Bob Blake
South Bend Tribune
SOUTH BEND, Ind. — Is the death penalty on its last leg?
The question is being discussed this summer after three high-profile, prolonged executions in Ohio, Oklahoma and most recently Arizona. It’s also a timely question as Indiana inches closer to its first execution in five years.
The problematic executions highlight a number of questions concerning the nation’s ultimate punishment — the willingness of trained medical professionals to participate in executions and the availability of proven execution drugs, among others.
The executions of Dennis McGuire, Clayton Lockett and Joseph Wood have brought a difficult subject into the limelight.
“As a result of this focus, some minds may change,” said Richard Garnett, a professor of law at the University of Notre Dame and an expert on capital punishment. “I think it’s still too soon to say if this will be the catalyst for a new abolition movement.”
Since the U.S. Supreme Court reinstated the death penalty in 1976, there have been 1,386 executions in the United States, according to information from the Death Penalty Information Center.
There have been 27 executions so far in 2014, most recently Aug. 6 in Missouri. There were 39 last year. The average over the last 38 years is more than 36 a year. Three years — 1976, 1978 and 1980 — there were no executions. The highest mark was 1999 with 98.
In Indiana, there are currently 13 inmates — all men — on death row at Indiana State Prison in Michigan City, according to Doug Garrison, a spokesman for the Indiana Department of Correction. One woman also faces a death sentence in Indiana, however, she is currently serving a life sentence in Ohio, Garrison said.
Since 1977, 97 people have been sentenced to death in Indiana with 20 executions, according to information from the Indiana Public Defender Council. Matthew Eric Wrinkles, 49, was the last Hoosier to face execution. He was executed in December 2009 for a 1994 triple murder near Evansville.
The next inmate likely to face execution in the state is Michael Dean Overstreet, according to Garrison. Overstreet was convicted of the September 1997 rape and murder of a college student in Johnson County. An attorney for Overstreet is challenging his competency to face execution, arguing he doesn’t understand what the state intends to do to him. The argument is set to be heard beginning Tuesday in South Bend.
Indiana’s protocol
Indiana’s current execution protocol calls for a three-drug lethal injection, Garrison said.
The first drug, Brevital, is adminstered to cause a “deep, painless unconsciousness,” according to Garrison. The second drug, pancurionium bromide, is then injected to paralyze the condemned inmate. The third drug, potassium chloride, is then administered to stop the inmate’s heart, he said.
“It is a very serious and solemn process. This is not easy on staff,” Garrison said. “They practice this frequently, at least quarterly, and more frequently as an execution date approaches.”
Execution team members are trained to interact with the condemned inmate in a compassionate manner, Garrison said.
“It’s a very solemn thing,” he said. “Support is provided to the offender, talking to them, telling them what’s going to happen.”
Contrary to what some people believe, the Department of Correction does not advocate or oppose capital punishment.
“We are an instrument of the state,” Garrison said. “It’s our obligation under state law to uphold the will of the people. Our personal opinion is not relevant.”
Bryan Corbin, a spokesman for Indiana Attorney General Greg Zoeller, said the same applies for the attorney general’s office.
“When convicted offenders appeal their convictions or sentences in appellate court, the attorney general’s office, as the state’s lawyer, represents the prosecution in the appeal,” Corbin said. “Regardless of personal views on the death penalty, the attorney general has an obligation to uphold the current laws of the State of Indiana that the legislature passed; and it is the attorney general’s legal duty to urge the appellate courts to leave intact the convictions or sentences previously determined by the lower courts and not overturn them.”
Despite numerous requests seeking comment, Governor Mike Pence’s office refused to issue a statement regarding his position on the issue.
Though Indiana is relatively inactive on the capital punishment front, it hasn’t deterred some opponents from working to shut it down permanently.
“While the Indiana death penalty is falling into disuse — only one new case was filed statewide in 2013, and only seven in the last five years — 2013 saw three new death sentences,” said Doris Parlette, a Bloomington resident and president of the Indiana Abolition Coalition. “As long as it’s on the books, Indiana’s death penalty stands to drain away taxpayer dollars, clog up courts, traumatize jurors, begin a seemingly endless ordeal for survivors, and create a serious risk of executing someone who is innocent. All without any real public safety benefit.”
A troublesome year
By all accounts, 2014 has been a troublesome year when it comes to the administration of capital punishment.
In January, it took Dennis McGuire more than 26 minutes of snorting and gasping to die in Ohio.
In April, Clayton Lockett died of a heart attack 43 minutes after Oklahoma officials began his execution. They unsuccessfully tried to stop the procedure after it was evident the drugs were not working.
Then came the July 23 execution of Joseph Wood in Arizona.
For nearly two hours, Wood lay gasping for air on a gurney in the Arizona death chamber.
“I was there with the thought if something happens I want to be there,” Michael Kiefer, a courts and legal writer for the Arizona Republic, said. “Sure enough, it did.”
Kiefer made a hash mark on a piece of paper each time he witnessed Wood’s chest heave. By the time it was done there were more than 640 marks. There were more heaves, Kiefer said, but his view was obstructed periodically by state officials tending to the condemned inmate.
“I was thinking maybe he’ll wake up, maybe they’ll stop the execution, maybe they’ll push in more drugs, which eventually they did,” Kiefer said. “It went on like this for almost two hours. That’s a long time to watch something like this, especially when it usually takes 10 or 11 minutes.”
Kiefer said that whenever a state official went to check on Wood and report that he was “sedated” the microphone picked up Wood’s struggles to breathe.
“You would hear this very loud gasping, snoring sound,” he said. “It was extremely loud. After an hour and a half he finally stopped breathing.”
For death penalty opponents like Kelsey Kauffman, a retired teacher from Greencastle, Ind., executions like Wood’s demonstrate why the practice needs to be stopped for good.
“Everything now is an experiment. Nobody knows ahead of time if it’s going to work,” Kauffman said. “Departments of Correction have all this bravado but no one really knows. They’re not going to come up with a good solution.
“What’s been going on this year is clearly cruel and unusual. To have someone gasping for breath for two hours like a fish out of water clearly violates the cruel and unusual provision of the Eighth Amendment.”
Kauffman said it’s a combination of factors that has led to the current predicament — the lack of medically trained professionals administering the procedures, along with the pharmaceutical companies forbidding their products to be used.
“It’s clear states are experimenting out of necessity,” she said. “It’s not working. It’s not going to work.”
Will the courts intervene?
Waiting for the U.S. Supreme Court to weigh in on the subject? Don’t hold your breath, some death penalty experts say.
Experts like Garnett at Notre Dame said, from a legal perspective, the Constitution permits capital punishment.
“Americans sometimes have this habit of thinking these questions will be settled by the Supreme Court. It’s pretty clear the Constitution allows it,” Garnett said. “If the death penalty is going to go away, it’s not going to be because of a court but because we the people want it to go away.”
Joseph Hoffmann, a professor of law at Indiana University in Bloomington and a death penalty expert, agreed.
“I don’t see changes leading to a dramatic end-game for the death penalty,” Hoffmann said. “I think we’re going to see a gradual whittling away in that there will be additional states that stop using the death penalty.”
Hoffmann said he also doesn’t think the Supreme Court is likely to wade into the dialogue on methods of execution.
“As a strictly legal matter, my best guess is this controversy is not going to lead to a judicial decision from the Supreme Court,” Hoffmann said. “The court has not been particularly concerned or anxious to be involved in methods of execution. What I think will happen is states will look for other methods.”
Hoffmann said he thinks more states will return to methods like the firing squad.
It’s an approach that has already drawn some support in the judicial ranks. Chief Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit, issued a dissenting opinion as part of the legal wrangling leading up to Wood’s execution in Arizona essentially saying the nation should be willing to accept the brutality of a firing squad or stop executions altogether.
“Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful — like something anyone of us might experience in our final moments,” Kozinski wrote. “But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact the state is committing a horrendous brutality on our behalf.”
Indiana’s death penalty future
Any movement on abolishing Indiana’s death penalty will have to come through the Indiana General Assembly, experts said.
While this year’s high-profile cases are likely to jump-start conversations on the topic, action remains unlikely.
Even after the Oklahoma execution, a national poll released in May by Gallup showed 61 percent of Americans view the death penalty as morally acceptable.
It’s a view held by both Democrats and Republicans in the Indiana General Assembly.
“Capital punishment is a penalty that should be available for heinous crimes as an expression of society’s right to self defense. It is used pretty rarely,” state Sen. Joe Zakas, R-Granger, said. “The method used should not be intended to cause suffering. Those cases should be reviewed as to effectiveness.
“Capital punishment can be a costly process, but that reflects the serious nature of the crime and what it takes for society to defend itself.”
It’s a reality acknowledged by House Democratic Leader Scott Pelath, D- Michigan City.
“When you have people commit terrible crimes against humanity is capital punishment worse than life without the possibility of parole?” Pelath said. “I think those are the types of questions not only lawmakers but citizens at large are increasingly contemplating.”
Rep. David Niezgodski, D- South Bend, said life and death situations should never be dealt with lightly.
“There needs to be some deterrent that shows that kind of strength behind it,” Niezgodski said. “There are just some things in this world that are just so horrible that warrant such a response.”
Rep. Timothy Wesco, R-Osceola, agreed.
“I support Indiana’s current law, which allows for the death penalty,” Wesco said in a written statement. “I believe that, when carried out, capital punishment should be swift and effective. I support the Indiana Department of Correction in their dutiful performance of administering justice.”