Choosing Your Own Poison and the Ethical Dilemma of Capital Defense Lawyers | Austin Sarat | Verdict

Today the long-awaited federal trial on Oklahoma’s execution protocols and the drug cocktail will begin. Following the twisted decisions of the Supreme Court of the United States in Baze vs. Rees in 2008 and Glossip vs Gross (2015), a critical question in the Oklahoma case will be whether death row inmates and their attorneys can identify a readily available method of execution that would be preferable to the state’s current method.

According to Carol Steiker, a Harvard law professor, the essential meaning of Baze and Glossip is best summarized as follows“We, the Supreme Court, have ruled the death penalty constitutional, so there must be a way to apply it. If the defendants do not like the method used by the state, they must indicate another method easily available to perform them.

In a court filing last week, attorneys for the inmates followed this playbook. They didn’t try to stop Oklahoma from executing their clients. Instead, they identified what they are better ways to put them to death than the methods currently used in Oklahoma.

It’s a good thing for them that there is no legal equivalent to medicine’s Hippocratic oath, “First, do no harm.”

In the post-Baze/glossip world, capital defense attorneys in the Oklahoma case, as in so many others, participate in a weird system. This system requires them to help their clients choose their own poison and then convince the courts that the government should kill their clients using the chosen method.

The Oklahoma case was first filed in 2014 following The horribly botched execution of Clayton Lockett. Since then he has had a unusually complex story involving calls and periods in which it seemed motivated by the state’s informal moratorium on executions.

It was revived in February 2020, after the state announced its intention to resume the execution of death row inmates. Since then, Oklahoma has executed four men using the three drugs in its lethal injection protocol, midazolam (a sedative), vecuronium bromide (a paralytic), and potassium chloride (a heart stopper).

One of those executions, the murder of John Marion Grant in October 2021, produced another gruesome sight. Media Witnesses reported that he had convulsions and repeated vomiting after the administration of midazolam.

The use of midazolam, according to the plaintiffs in the federal lawsuit, will put them at significant risk of severe pain. They note that this drug was implicated in several executions, such as that of Grant, in which condemned prisoners were insufficiently calmed before the administration of potassium chloride. According to Human Rights Watchpotassium chloride is “excruciatingly painful if administered without proper anesthesia”.

David Waisel, professor at Harvard Medical School accepted and explains, “The first drug is essential to ensure a humane execution, as the paralytic and potassium will cause pain and suffering if the inmate is not anesthetized.”

While my own research shows that nothing can “guarantee a humane execution”, but Waisel is correct in saying that in any lethal injection of multiple drugs, “the first drug must have certain characteristics: a rapid effect, so that the prisoner does not experience a long period of breathing difficulties; analgesia, to block the burning pain of potassium chloride; and the constancy of effect for a given dose.

In their recent filing, Capital’s defense attorneys told federal court that Oklahoma has three viable alternatives to its current protocol.

First, he could eliminate vecuronium bromide from the lethal injection cocktail and use the opioid fentanyl as a “pre-medication”. Or he could use a single lethal dose of pentobarbital or sodium thiopentone, with a predose of fentanyl. Or, if Oklahoma didn’t want to pursue any of these alternatives, it could use the firing squad to kill its clients.

Although in 2019 Trump’s Justice Department took into consideration using fentanyl, such as did the state of Nevada two years later, the drug was used only once in a US execution. Nebraska employee in 2018 to put Carey Dean Moore to death.

The last execution by firing squad occurred in Utah in 2010.

But for the catch-22 of current Supreme Court enforcement case law, one could hardly imagine defense attorneys in the capital embracing either fentanyl, a drug associated with the ravages of the opioid crisis in the states United, be the firing squad.

Because of this case law, defense lawyers in the capital become accomplices to a system they hate. Faced with the grim prospect that nothing can be done to prevent an execution, they do everything they can to ensure their clients get the best possible death.

This effort unfortunately gives the death penalty a veneer of legitimacy by suggesting that there are in fact humane methods of execution. As Ohio State Law Professor Douglas Berman argue“Sophisticated abolitionists realize that a death penalty system made truly more perfect is a death penalty system more likely to garner broad public support and increase the number of state executions of convicted murderers. .”

While many discussions of the work ethic of defense of capital ignore or barely address the dilemma of providing a representation that has such an effect, the Yale Law School Ethics Office picked it up straight away.

In 2014, it responded to the difficulty created by the Baze ruling.

This noted that the ruling required capital defense attorneys “to abandon the client’s stated goal for representation – and instead concede the constitutionality of an alternate, untested method of enforcement – despite the fact that no lawyer should be required, faced with a method of enforcement that the client claims to be unconstitutional, to argue for an alternative. »

The Yale panel anticipated that the type of representation Oklahoma attorneys were required to provide would place them “into a serious and darkly ironic conflict: the primary goal of any attorney representing a death row client is to prevent the execution of his client; yet the pleading rule would require the attorney to actively plead for a particular means of bringing about the death of his client while attempting to avoid it.

Renowned legal ethics expert Stephen Gilles Remarks that putting lawyers in this position “undermines the foundation of the attorney-client relationship. To frame it as a rhetorical question, the answer to which should be obvious: does it upset the trust essential to the relationship between a lawyer and a client to require the lawyer to plead in court? a legally authorized way to kill his client? Just in case the answer isn’t obvious, it’s yes.

In the post-Baze/glossip world, as Gilles says,[T]The price of the defendant’s willingness to challenge the state’s choice to make a counter-offer — another means of enforcement that the defendant would then concede is legal. The lawyer is forced to choose between two unacceptable alternatives.

The only way out of this situation is to put an end to the cruelty that the Supreme Court impatiently tolerate.

This cruelty is visible every time the state kills one of its citizens and in the many botched lethal injections. It is also a constituent part of the Court’s insistence that death row inmates must choose their own poison and call upon their lawyers in this Kafkaesque exercise.

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