Bleeding Heart Standard: ANY Pain a Killer Feels Is Too Painful for Eighth Amendment Guidelines
By Greg ‘Gadfly’ Doyle | PACOVILLA Corrections blog | February 11, 2015
According to a report from The Christian Science Monitor, on January 28, 2015, the Supreme Court of the United States (SCOTUS) agreed to hear a last-minute appeal from three Oklahoma death row inmates. The State of Oklahoma has suspended the scheduled executions of those inmates, due to the appeal argument that the lethal injection protocol and specifically, the drug (midazolam), which is a part of that protocol, might not effectively cause unconsciousness in the condemned, which could cause them to feel pain as their lives are being terminated.
Due to the time needed to plead this case before the Court, a suspension of execution was needed in order to consider their claim lest the three suffer death before the court appearance date.
Unlike California, where most death row inmates die of natural causes, the Bleeding Heart Standard (BHS) in the OK case appears to promote the notion that ANY pain a condemned prisoner experiences during execution is TOO MUCH pain, and legally amounts to State-inflicted, unconstitutional torture.
However, one condemned inmate had already been executed by the State of Oklahoma, before SCOTUS agreed to hear the pending matter on the other three inmates. Whatever the outcome of this appeal, it could create yet another backlog in an already convoluted execution schedule across the United States.
“Specifically at issue in the Supreme Court challenge is whether the first drug administered in the execution process – midazolam – is effective in rendering the condemned prisoner into a coma-like unconsciousness before the other two drugs are administered.
Lawyers for the inmates have expressed fear that if the first drug is ineffective, their clients will be subject to intense pain when the second and third drugs are administered.
The concerns were raised after botched executions in Oklahoma, Ohio, and Arizona last year. In all three cases, midazolam was the first drug used in a three-drug lethal injection protocol.” (for the CSM story see http://tinyurl.com/qhn4sxk.)
If the present appeal fails, Pacovilla.com suggests a more reasonable appeal on a generic level, that most Americans could identify with, would be: “I don’t like needles.”
Riders, let’s be perfectly clear about the reason executions should and do occur as a consequence of the rule of law. Capital punishment is the highest price and most serious penalty (aka: death penalty) a human being can be subjected to under the rule of law in the United States of America. It is not a form of euthanasia—putting down a sick cat, puppy, or, in parts of Europe, a bedridden granny—it is a severe and exacting punishment to be experienced and felt by the one whom the law deems must pay the penalty.
In State courts, murder with special circumstances is generally the standard that qualifies for a death penalty case. What types of special circumstances qualify? Serial killing or the torture, planned ambush, kidnap, robbery, rape, child molestation, burglary, or arson preceding a murder may qualify a defendant for capital punishment. However, prosecutors often mitigate these types of cases by offering plea bargains of Life Without Possibility of Parole (LWOP), Life, or very long prison sentences.
As a general rule, the most vile and heinous cases imaginable end up as death penalty cases.
According to a specific State-sanctioned process (which as stated above, first begins with the capital crime of first-degree murder), evidence is collected and reviewed, charges are brought against a defendant, a legal proceeding is brought before a judge through multiple hearings, witnesses are examined, a jury trial is conducted, and a final decision and finding of GUILTY must be rendered. Only then can a second trial be conducted to determine if a guilty finding justifies the condemnation of said defendant. Otherwise the defendant receives incarceration, a lesser sentence than death.
Opponents of the death penalty would like the general public to believe that every inmate on death row somehow deserves to live by the mere essence of their human existence. It is unfortunate that the anti-death penalty crowd routinely ignores the suffering of the families of the victims brought to bear by the criminal acts of those condemned inmates. Their ilk generally subscribes to a belief that the State-sanctioned killing of a convicted murderer is morally reprehensible.
It is as if the life of a condemned inmate, through his or her well-documented act of despicable intention, unconscionable cruelty, wanton disregard, and brutal achievement, matters more to these anti-capital punishment advocates than the life unlawfully claimed through a criminal act. In other words, the legal system only applies to their passionately dysfunctional appeals for reprieve, clemency, and mercy, when none was ever given by the condemned to their victim(s.) Victims be damned; condemned be given life.
Personally, I care nothing about the financial cost of executing duly convicted and condemned inmates. What I care about is the continued obfuscation of the rule of law by special interest groups; whether it is on the issue of illegal immigrants, health care, social programs, or, in this instance, the death penalty. The anti-death penalty crowd and the many lawyers (who file appeals ad nasaum on behalf of those condemned souls whom the rule of law has determined must die at the hands of the State) are a special interest group.
People lose their heads all the time in the Middle East, and no one their seems concerned about the cruel and unusual nature of those executions
Let’s recall what the Eighth Amendment really says:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
By the rule of law, State execution is neither cruel or unusual. Neither are American executions barbaric. Inmates are not drawn and quartered (pulled apart by their arms and legs by horses), tortured for hours before being set on fire (as witnessed recently in an ISIS video), beheaded (Google Saudi Arabia for more on this), or impaled or crucified to die long, agonizing deaths.
Even in the attorney-proclaimed and press-regurgitated “botched execution” of Clayton Lockett in Oklahoma, in April 2014, it appeared that a mechanical failure of equipment, was the culprit, not the drug in question. Yet read the emotional response of the attorneys who were present in their statements to the press, and how the press presented the article:
““This was botched, and it was difficult to watch,” said David Autry, one of Mr. Lockett’s lawyers.
Dean Sanderford, another lawyer for Mr. Lockett, said, “It looked like torture.”
A medical technician inserted the IV needle and then the the first drug, a sedative intended to knock the man out and forestall pain, was administered at 6:23 p.m. Ten minutes later, the doctor announced that Mr. Lockett was unconscious, and the team started to administer the next two drugs, a paralytic and one intended to make the heart stop.
At that point, witnesses said, things began to go awry. Mr. Lockett’s body twitched, his foot shook and he mumbled, witnesses said.
At 6:37 p.m., he tried to rise and exhaled loudly. At that point, prison officials pulled a curtain in front of the witnesses and the doctor discovered a “vein failure,” Mr. Patton said.
Without effective sedation, the second two drugs are known to cause agonizing suffocation and pain.
Mr. Lockett’s apparent revival and writhing raised questions about the doctor’s initial declaration that he was unconscious and are sure to cast doubt on the effectiveness of the sedative used. (see cite below)
Notice that the above quote did not cite any authority in reference to the “agonizing suffering and pain” associated with the second two execution drugs. Compare that journalistic presentation of facts to what was initially reported in the same article:
Clayton D. Lockett, began to writhe and gasp after he had already been declared unconscious and called out “oh, man,” according to witnesses. (full story at http://tinyurl.com/kgoptoo.)
The utterance of “Oh, man” is a far cry from the horrific screams of a tortured soul.
According to the same article, at about 7:06 p.m. (Central Time) Lockett suffered a heart attack. Writhing and gasping is a usual reaction during a heart attack. In medical terms, Lockett died of a natural cause (a heart attack) as the result of his State-approved execution. Can a reasonable person deduce, though the line failure was inadvertent, that what occurred to Mr. Lockett was not cruel or unusual?
In other words, the State did not step outside the protocol, but an accident occurred during the procedure. Perhaps it is unfortunate that Lockett’s one line collapsed while he was being executed. It triggered a heart attack and he died. In the grand scheme of things, the protocol and procedure did not end in a botched execution—-HE WAS SUPPOSED TO DIE!!! AND HE DID!!!
Call it botched if it makes you feel better. Still, what happened to Mr. Lockett, when all is said and done hardly seems cruel or unusual. Three Oklahoma condemned prisoners were days away from meeting their Maker, when an appeal based upon Clayton Lockett’s “botched execution” bought them a temporary reprieve. The one who did not benefit was inmate Charles Warner.
What happened to condemned inmate Charles Warner on January 15, 2015? He tired to make people think he had been tortured before any drugs had been administered. Nice try, Charlie. Mr. Warner was successfully executed, with no line failure (for full story see http://tinyurl.com/nqbzy25.)
Let’s hope SCOTUS does not further muddy the waters in this new appeal.
The rule of law demands three men in Oklahoma pay the highest price for their crimes. How much longer must justice for their victims be delayed?
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