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The disturbing lessons of Arizona's un-American execution
Our government seems more intent on executing criminals than on ensuring such executions are humane
 
This is not the place for experimenting.
This is not the place for experimenting. (AP Photo, File)

What happened Wednesday afternoon to Joseph Wood in Arizona was a state-sponsored, judicially sanctioned human experiment that went terribly wrong. The subject of the experiment, a convicted murderer, was supposed to die. And eventually he did. But it was not supposed to take nearly two hours for Arizona to kill him. The lethal drugs that prison officials dripped into his body weren't supposed to cause him to gasp for air for an hour and 40 minutes before he died, as his lawyer reported, or gasp over 600 times, as a media eyewitness recounted.

By the time dusk came to the desert, the Arizona attorney general had issued a triumphant press release so negligently drafted that at first it included the name Robert Jones, a death row inmate Arizona executed last October. The Arizona governor had also declared success, dutifully promised an investigation, and yet at the same time mocked claims that Wood had suffered during the course of the long procedure. And the Arizona Supreme Court, which had permitted the execution to proceed earlier in the day, and which was holding a hearing to stop the botched execution at the very moment it learned that Wood at last was dead, demanded that the state preserve the drugs used to finish him off.

The heart of this story is the dead man, the way he died, and the way his grisly death was so predictable given what we all know about the sorry state of lethal injections in America today. Arizona didn't just experiment on Wood. It experimented on him without ever subjecting its planned experiment to any sort of independent review. The state combined midazolam with hydromorphone and topped it off with a series of unsupported, unjustified, untested assurances that all would be okay — this from the very officials who couldn't get Wood's name right when at last they were able to announce that they had successfully executed him.

We thus see in this botched execution the meshing together of two themes — one purely American, the other surely un-American. The purely American component is capital punishment itself, an institution with a longer history in this land than the Constitution itself. You can see its American-ness in the resolute satisfaction with which state officials, like Wood's secret executioners, carry out capital punishment "in the name of the people." This is the theme that allows otherwise reasonable citizens to forget that we are supposed to be better than the murderers in our midst; that decency (and the Eighth Amendment) command us not to make the condemned suffer as they had made their victims suffer.

The purely un-American component to Wood's death is the willingness of his executioners, and of the state and federal courts, to permit this human experiment to proceed without even a patina of transparency about what exactly it would entail. A few judges here and there piped up, but the United States Supreme Court, in the end, refused to delay this farce with a simple sentence that said: "If Arizona is so confident in the drugs it intends to use, and the manufacturers who provided those drugs, and the procedure it plans to employ, it should gladly turn all that information over to the defense and the rest of the world to permit an independent review of the experiment before it is too late."

An experiment. In this case, and every lethal injection case that has preceded it in this new age of secrecy over injection drugs (an age which was largely spurred by the European Union's decision to stop exporting the drugs America had long used for lethal injections), state officials have assured judges that their execution protocols are safe and humane when they are not. It reminds me of one of the most famous quotes in American legal history, from United States Supreme Court Justice Oliver Wendell Holmes, written nearly a century ago in his dissent in Abrams v. United States. The context was different, but the core truth is as relevant here as ever:

If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.

These executions are un-American because they preclude prime merchants at the "marketplace of ideas" (medical experts, legal experts, ethicists, etc) from evaluating the efficacy of the drugs and procedures these states are using to execute their citizens. They are un-American because they embrace the immoral premise that it is okay to kill someone in the name of the state not by nobly trying to achieve best practices for such killings, but by actively, persistently, ghoulishly ensuring that those "best practices" cannot be obtained so that there will be "imperfect knowledge" about how the killings are to be done.

The marketplace of ideas over lethal injections is flourishing — a great national debate on the issue arises every time a man is tortured to death like this. But by keeping secret basic information about the drugs to be used against Wood, by precluding a sober review of where those drugs came from, and what was in them, Arizona and our nation's judges still ensured that his case and his cause would never make it to market. The United States Supreme Court, Arizona's Supreme Court, and those hapless, earnest state bureaucrats all told us earlier this week that it was more important to execute Wood than it was to make sure his execution was humane.

 
Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.

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