“Bring Back the Firing Squad”

Preparing-an-injection1695
“If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all,” wrote Ninth Circuit Court of Appeals Federal Judge Alex Kozinski in a dissent released Monday. Kozinski dissented from a Ninth Circuit decision dismissing Arizona death row inmate Joseph Wood’s lawsuit seeking information about the drugs to be used in his execution. Kozinksi was quoted by Adam Serwer in his commentary, “Judge’s modest proposal: Bring back the firing squad,” posted on MSNBC’s website on July 22, 2014.
Read more about “mystery drugs” and the secrecy behind their use:

 

Another Botched Execution

Preparing-an-injection1695Oklahoma botched last night’s execution of Clayton Lockett by using a new, untested lethal injection protocol. While execution officials had pronounced Lockett unconscious, he was awake minutes later, writhing and breathing heavily. In apparent pain, he fought the restraints that locked him to the gurney. As he continued to twitch and call out “Man” and “Something’s wrong,” officials closed the shutters to block viewers from witnessing an execution gone horribly wrong.

Officials halted the execution. Lockett died of a heart attack within the hour.

The latest bungled execution is a tragic reiteration of Ohio’s execution of Dennis McGuire, who was put to death in January with a new two-drug combination that had never been tested. What McGuire’s attorneys had argued prior to his execution came true: the drug combination caused their client to experience “air hunger” in his struggle to breathe. “Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” McGuire’s daughter, Amber McGuire, is reported to have said. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.

Oklahoma and Ohio’s experiments with new, untested lethal injection protocols are real-life — or real-death — demonstrations of what can go wrong when states are allowed to execute people using untested and dubious execution methods.

The majority of the 32 death penalty states in the U.S. and the U.S. federal government use lethal injection as the primary means to execute prisoners. Governments have traditionally used a three-drug combination to put people to death. But now, they are resorting to new combinations because the drugs needed for the three-drug injection are difficult to obtain. The drugs’ sources are drying up, caused by foreign government regulations, European Union restrictions placed on the supply, and drug corporations’ positions.

As these drugs have become increasingly harder to obtain, states have begun using other drugs to administer a lethal dose. In turn, pharmaceutical companies have refused to supply these drugs for execution purposes in the U.S.

Now, states like Oklahoma and Ohio are turning to questionable sources—including compounding pharmacies selling drugs that are not FDA-approved—to get the drugs they need to execute people. Obtaining execution drugs that are outside of federal regulation increases the risk of tampering and reduced drug efficacy; this increases the probability of cruel or inhuman treatment or punishment during an execution, a violation of the U.S. Constitution’s Eighth Amendment.

Moreover, several states have passed secrecy laws to conceal the identities of their drug suppliers, thus allowing states to withhold critical information from detainees and their families who seek assurances about the drugs’ quality and effectiveness.  The attorney for Charles Warner, a second man to be executed by Oklahoma last night, had criticized the suppression of information earlier on Tuesday. “Because the issue of secrecy in lethal injection has not been substantively addressed by the courts, Clayton Lockett and Charles Warner will be executed without basic information about the experimental combination of drugs used in their deaths,” attorney Madeline Cohen said in a statement, according to the Washington Post. “Despite repeated requests by counsel, the state has refused, again, and again, to provide information about the source, purity, testing and efficacy of the drugs to be used.”

U.S. states have faced challenges with lethal injection because of the clamp down on the drug supply. Lethal injection in the U.S. has now turned into a cat-and-mouse game, with states attempting to procure execution drugs from an international community determined to keep the drugs out of the states’ possession, leading states to turn to untested and uncharted drug protocols as alternatives.

Regardless of whether a three-drug injection or a two-drug injection is used, there is much concern that these injections cause cruel and inhuman punishment. The gruesome deaths of Lockett and McGuire are visible, horrific testimonials that lethal injection violates the Eighth Amendment. “No one should die the way my dad did, no matter the circumstances,” said McGuire’s daughter, according to reports.

Hours after McGuire’s execution, Terry Collins, who served as the Director of the Ohio Department of Rehabilitation and Corrections from 2006 to 2010 and oversaw 33 executions, said that the suffocation execution of McGuire shines the spotlight on the unworkable nature of the problems in the death house. “The experiment has failed and that is plainly obvious,” he said.

The Advocates for Human Rights submitted a shadow report to the United Nations Human Rights Committee, detailing how the death penalty in the U.S. violates basic human rights, including the right to be free from cruel, inhuman, or degrading treatment or punishment. The Advocates was there, at the Committee’s 100th session in Geneva, Switzerland in March, when the Committee took the U.S. to task on the death penalty and other issues.  In its concluding observations, the Committee urged that measures be taken to ensure that the death penalty is not carried out in a racially biased or erroneous manner and that lethal injection drugs come from legitimate sources.

By: Attorney Rosalyn Park, The Advocates for Human Rights’ director of research, represents The Advocates on the World Coalition Against the Death Penalty steering committee. She chairs the Working Group for World Day Against the Death Penalty and is active on several other working groups. Before beginning work with The Advocates, Rosalyn interned with Anti-Slavery International in London as an Upper Midwest International Human Rights Fellow.

Lives on the Line: Will Supreme Court Hold U.S. Accountable for the Death Penalty?

Video excerpting questions about the administration of the death penalty in the United States from the United Nations Human Rights Committee, as well as the responses from the United States delegation.

The United Nations Human Rights Committee took an important step last week in holding the United States accountable for its human rights record, and Friday the ball is in the Supreme Court’s court. In a March 27 press conference, the Committee issued its Concluding Observations, following analysis of the United States’ self-report on its human rights record, shadow reports from The Advocates and other civil society organizations, and an interactive dialogue between the Committee and a 32-member government delegation on March 13 and 14 in Geneva, Switzerland.

On Friday, the Supreme Court has a chance to take up one of the Committee’s key issues.

One of our U.S. civil society briefings with the UN Human Rights Committee in Geneva
One of our U.S. civil society briefings with the UN Human Rights Committee in Geneva (I am seated on the right.)

I helped author The Advocates’ shadow reports, and I was in Geneva to participate and observe, representing The Advocates. Our shadow reports, submitted to the Committee in October 2013, held the United States’ feet to the fire on the death penalty, rights of non-citizens, immigration and asylum, and violence against women. The Committee’s Concluding Observations were long and detailed, delving into a wide variety of concerns, including the issues The Advocates and its partners raised.

Two lives were on the line

We were particularly excited when the U.S. State Department announced the delegation, because it included Mississippi Attorney General Jim Hood. This is the first time a U.S. delegation for a treaty-body review has included representatives from state and local governments. They are an important piece of the accountability puzzle because many of our country’s human rights obligations need to be implemented at the state and local level.

Mississippi retains the death penalty, and Attorney General Hood had just asked the Mississippi Supreme Court to schedule two back-to-back executions for March 26 and 27–for Charles Ray Crawford and Michelle Byrom. We knew that two lives were on the line.

Committee highlights key death penalty issues

The Committee’s examination of the United States on March 13-14 and its Concluding Observations mirror some of the issues we raised in our shadow reports. They devote much attention to the death penalty, including the associated issues of exonoree compensation, racial disparities, and sourcing of drugs used for executions.

While welcoming the overall decline in the number of executions and the increasing number of states that have abolished the death penalty, the Committee shares The Advocates’ concerns about its continued use. The Committee is concerned by the high number of people wrongly sentenced to death, despite existing safeguards, and it is concerned about the racial disparities in the death penalty’s imposition—disparities that disproportionately affect African Americans and that are exacerbated by the rule that discrimination has to be proven case-by-case.

As I discuss below, just this week there have been some developments on the issue of wrongful convictions.

Committee urges federal and state governments to ensure fair compensation for people who are wrongfully convicted and sentenced to death

The Committee also notes, as we observed in our shadow report, that 16 states retaining the death penalty do not provide compensation for people who are wrongfully convicted; other states provide insufficient compensation or impose barriers to obtaining it. Consider Glenn Ford. Wrongfully convicted in Louisiana, Ford spent almost 30 years on death row for a crime he didn’t commit. As Committee expert Professor Walter Kaelin noted during the review, he was exonerated and released just days before the Committee’s review. He would have been about 34 years old when he entered death row, and was 64 when he was released. Louisiana’s compensation law allows him to collect only a maximum $330,000 for the three decades he spent on death row for a crime he didn’t commit.

The Committee also notes with concern reports that states administer untested, unregulated drugs to execute prisoners, and that state authorities withhold information about the drugs from those to be executed. There have been some late-breaking developments around the country on these drug-sourcing issues.

Committee hits hard on Mississippi’s sourcing of lethal drugs

Mississippi Attorney General Jim Hood, March 14, 2014, waits to respond to questions from UN Human Rights Committee experts about the sourcing of lethal injection drugs his state plans to use for two upcoming executions.
Mississippi Attorney General Jim Hood, March 14, 2014, Geneva, waits to respond to questions from UN Human Rights Committee experts about the sourcing of lethal injection drugs his state plans to use for two upcoming executions. (Photo by the author.)

 

We were really fortunate that Mississippi Attorney General Hood was part of the U.S. delegation in Geneva. I was there on the ground, so my colleagues at The Advocates and I were able to quickly collect facts about the upcoming executions of Crawford and Byrom that Hood had requested and fed hard-hitting questions about Mississippi’s lethal injection policies directly to the Committee experts.

Mississippi was just one week away from executing Crawford and Byrom with drugs from a compounding pharmacy. As our shadow report explains, compounding pharmacies are not regulated by the U.S. Food and Drug Administration, and Mississippi’s drugs had likely expired. These kinds of drugs carry a high risk of causing excruciating pain; one of the more recent executions to use compounded drugs resulted in the prisoner crying out during his execution, “I feel my whole body burning.”

Drug-sourcing has become a problem for states seeking to execute inmates, because many European drug manufacturers have stopped selling drugs like pentobarbital to the United States, fearing they will be used in executions. States are therefore scrambling to come up with alternative ways to concoct their execution drugs.

It was instructive that an official from a state government was part of the U.S. delegation—a first—because state governments conduct the overwhelming majority of executions. And the Committee experts repeatedly pressed Attorney General Hood on the sources of Mississippi’s lethal drugs.

You can see the questioning in the 17-minute video at the top of this post, which excerpts the relevant questions on the death penalty from the Committee and responses from the U.S. delegation.

Due Process revived: Michelle Byrom granted new trial; Charles Ray Crawford’s appeal to proceed

Soon after the Committee’s examination, Attorney General Hood’s office asserted that he asks for execution dates only “once due process has occurred.” The Mississippi Supreme Court this week twice disagreed with his characterization of due process. The court reversed Michelle Byrom’s conviction and granted her a new trial with a new judge. In its two-page order, the court emphasized that its action was “extraordinary and extremely rare.”

Seemingly oblivious to his own role in nearly executing someone the court determined was entitled to a new trial, and to the extraordinary nature of the court’s decision, Hood responded, “Our citizens can once again take comfort in the fact that we have a legal system that works for all parties involved.” And rather than accepting the court’s decision, a motion from Hood’s office complained that “[e]ach and every claim that Byrom presented to this Court had been addressed on the merits either by this Court or the federal courts on habeas corpus review,” and asked for the court to explain its decision.

On the same day, the Mississippi Supreme Court denied Attorney General Hood’s request to execute Charles Ray Crawford. The court noted that during the sentencing phase of Crawford’s trial, the prosecution introduced as an aggravating factor evidence that he had previously been convicted of rape. The court noted that Crawford’s appeal of that rape conviction was currently pending, so Hood’s request to execute Crawford was premature.

Challenges to sketchy lethal drug sourcing multiply

Last week, before the Mississippi Supreme Court rejected Hood’s requests, attorneys for Byrom and Crawford filed a lawsuit challenging the drugs that the State of Mississippi had purchased for their executions. The state had initially refused to tell Byrom and Crawford where it had obtained pentobarbital, the first drug in Mississippi’s execution procedure.

But some clever detective work by Byrom and Crawford’s legal team uncovered the source–a compounding pharmacy called Brister Brothers in Grenada, Mississippi. Judging from Brister Brother’s facebook page, the outfit specializes in “herbal dietary supplements,” including a “specially formulated men’s tonic” called “Man Up.”

Brister Brothers co-owner Ward Brister says the company is a “third-party supplier” and did not compound the pentobarbital. According to an NBC report, “Byrom’s legal team presumes Brister purchased the raw ingredients for the drug and that the state intends to have it compounded for the executions.”

The lawsuit alleges that the State of Mississippi will secretly compound the drugs at an unknown time and place, by people with unknown training and credentials. The danger, a lawyer for Byrom and Crawford explains, is that “[i]f the state’s pentobarbital is contaminated or sub-potent, prisoners will be conscious when the second and third drugs are administered, and they will experience a torturous death by suffocation and cardiac arrest.”

U.S. Supreme Court could act soon

Front doors of the U.S. Supreme Court
Front doors of the U.S. Supreme Court (Photo by the author.)

Also last week, Missouri executed a man using secretly sourced pentobarbital. His attorneys sought a stay from the U.S. Supreme Court, arguing that Missouri’s “secretive process prohibited the public from knowing exactly how the drug was made and whether it could cause pain and suffering for the inmate.”

The Supreme Court denied the motion for a stay on a 4-5 vote. A similar challenge garnered three votes in February. And a federal judge in Texas just yesterday issued two stays of execution over challenges to that state’s drug secrecy laws. But just hours later, an appeals court vacated her order, allowing the executions to proceed.

Tomorrow, the U.S. Supreme Court will consider for the second week in a row whether to review a case raising similar drug-sourcing issues in Louisiana. And it will also consider another Missouri execution case raising a similar challenge. Five Justices must vote to issue a stay of execution, but four votes is all it takes to grant certiorari, so last week’s close vote on the Missouri execution might be a signal of hope for the Louisiana case and others like it.

(Here’s a tidbit for readers interested in the obscure, perplexing Supreme Court “arithmetic of death.” In pending execution cases in which four Justices vote to grant review, there apparently had been an informal practice of a fifth Justice granting a “courtesy” vote for stay, so that the execution wouldn’t render the case “moot.” Supreme Court watchers say this practice ended by 1990. As a result, an inmate may be executed despite the Court’s decision to hear the case, which seems to be what happened last week.)

Committee issues strong recommendations on lethal drug sourcing

In its Concluding Observations released last week, the UN Human Rights Committee urges the United States to

“ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution.”

If the Supreme Court grants cert. in the Louisiana case, it will be the first body of the U.S. government to take action consistent with the UN Human Rights Committee’s recommendations issued last week, upholding our country’s human rights treaty obligations. It would be a great start to the long process of working on implementation of the Committee’s recommendations.

Committee issues further recommendations on the death penalty

The Committee also recommends that the United States consider establishing a moratorium on the death penalty at the federal level, and, on the 25th anniversary of the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty, consider acceding to the Protocol.

In summary, the Committee recommends that in addition to establishing a moratorium, acceding to the Protocol, and ensuring that legal drugs come from transparent, regulated sources, the United States:

1. take measures to effectively ensure that the death penalty is not imposed as a result of racial bias;

2. strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage;

3. ensure that retentionist states provide adequate compensation for the wrongfully convicted; and

4. engage with retentionist states with a view to achieving a nationwide moratorium.

As litigation challenging the death penalty around the country continues, The Advocates for Human Rights will work with civil society organizations and state and federal governments to press the Committee’s recommendations and work on implementation. We will continue to raise these and other issues during upcoming United Nations reviews, such as those scheduled by the UN Committee on the Elimination of Racial Discrimination in August, the UN Committee Against Torture in November, and the UN Human Rights Council’s Universal Periodic Review of the United States next January.

This post is one in a series of posts on the UN Human Rights Committee’s review of the United States.

More posts in this series:

Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record (The Advocates Post)

Access to Justice and the Bringing Human Rights Back Home Challenge (Human Rights At Home Blog)

Decades Later, No Justice for Kent State Killings (ACLU)

U.S. Human Rights Record Undergoes International Scrutiny (ACLU)

By: Amy Bergquist, staff attorney with the International Justice Program at The Advocates for Human Rights.

U.S. Human Rights Record Undergoes International Scrutiny

Amy Bergquist, staff attorney with The Advocates for Human Rights, is in Geneva this week for the United Nations Human Rights Committee’s review of the United States’ human rights record. She is part of a delegation coordinated by the U.S. Human Rights Network, a network of organizations and individuals working to build and strengthen a people-centered human rights movement in the United States.

After more than a year of preparation over the phone, email, and even in webinars, Bergquist and her delegation colleagues got together Sunday to finally meet face to face. “Wow what a crowd!” Bergquist said. “More than 60 of us crammed into a hotel conference room (and the adjoining hallway) for a 3-hour meeting to finalize our preparations. The room was full of energy and excitement!”

Group members spent the evening polishing 2-minute working group statements, which were delivered in a formal briefing to the Human Rights Committee on Monday. And they plotted out their additional informal briefings with the committee and side events that target a broader audience in Geneva. They have an action plan for blogging, live-tweeting, and doing other social media outreach, too.

The following post, which originally appeared on the ACLU Blog of Rights, is just one of the blog post series that network members plan to write about the U.S. review.

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U.S. Human Rights Record Undergoes International Scrutiny

By Jamil Dakwar, Director, ACLU Human Rights Program
(This post and accompanying image originally appeared on the ACLU Blog of Rights on 03/09/14)

This week, the United Nations Human Rights Committee will review U.S. compliance with its obligations under the International Covenant on Civil and Political Rights, ratified by the U.S. in 1992. The review will cast light on a dark underbelly of American exceptionalism — our refusal to acknowledge that human rights treaties have effect overseas. Unlike most of the world (the only other exception being Israel), the United States continues to claim that human rights treaties don’t apply to U.S. activities overseas.

The review is a rare spotlight on human rights issues inside the United States, one of the few occasions where our government is forced to speak the language of human rights – rather than its usual constitutional and civil rights rhetoric – and explain its own violations. It is also attracting worldwide attention—so much so that the committee had to reserve a bigger hall to accommodate the sizable U.S. government delegation and more than 70 human rights advocates and observers who will be in attendance at the six-hour session. The entire U.S. ICCPR review will be broadcast live on UN TV and take place on March 13 and 14.

The review will shine an international spotlight on significant human rights issues in the United States: the rights of indigenous peoples, the death penalty, solitary confinement, voting rights, migrant and women’s rights, NSA surveillance and targeted killings.

The ICCPR protects basic human rights, such as freedom from torture and abuse, freedom from discrimination, the right to life and effective remedy, the right to privacy and freedom of expression, and many more. Since ratifying the treaty in 1992, the U.S. has been bound to uphold these fundamental protections and must undergo periodic reviews. The last time the United States appeared before this committee was in July 2006, when the Bush administration denied participation in numerous acts of torture while operating a web of secret CIA detentions abroad.

The ACLU submitted a shadow report to the committee highlighting examples of accountability gaps between U.S. human rights obligations and current law, policy, and practice. Although the U.S. human rights record has shown marked improvement since its last review by the committee in 2006, most notably in the areas of LGBT rights and enforcement of civil rights by the Department of Justice, U.S. laws and policies remain out of step with international human rights law in many areas. In addition, the ACLU provided an update to the issues covered in our September submission to the committee, which addresses serious rights violations that have emerged in recent months. The report covers:

Anti-Immigrant Measures at the State and Federal Levels

U.S.-Mexico Border killings and Militarization of the Border

Solitary Confinement

The Death Penalty

Accountability for Torture and Abuse During the Bush Administration

Targeted Killings

NSA Surveillance Programs

More than ever, the U.S. is facing an uphill battle to prove its bona fides on human rights issues. The United States is not only seen as a hypocrite, resisting demands to practice at home what it preaches abroad, it is now increasingly seen as a violator of human rights that is setting a dangerous precedent for other governments to justify and legitimize their own rights’ violations.

While addressing United States’ breaches of privacy rights last January, President Obama said:

And I also know that in this time of change, the United States of America will have to lead. It may seem sometimes that America is being held to a different standard. And I’ll admit the readiness of some to assume the worst motives by our government can be frustrating. No one expects China to have an open debate about their surveillance programs, or Russia to take privacy concerns of citizens in other places into account. But let’s remember: We are held to a different standard precisely because we have been at the forefront of defending personal privacy and human dignity.

The ICCPR review process presents the administration with an opportunity to put President Obama’s words into action, not only in the context of privacy rights, but all other rights guaranteed by the ICCPR. This review will be the last in his term as president and will, in part, determine his human rights legacy. We look forward to briefing the committee members and observing the U.S. government review later this week, and hope that the concerns and recommendations raised by the ACLU and other groups will be meaningfully addressed by the U.S. government. The world will be watching.


Watch for blog posts about these subjects:

  • Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record
  • Human rights and mental health in the U.S.
  • Anti-immigrant measures, U.S.-Mexico border militarization, solitary confinement, death penalty, torture and abuse during the Bush administration, targeted killings, NSA surveillance program
  • Human rights defenders
  • Voting rights, Stand Your Ground laws
  • Human Rights Committee review of the U.S. (March 13-14)
  • Wrap up and overview of the week

“I did not want to live like an animal . . .,” death row exonoree tells U.S. Congress

Death Penalty
Damon Thibodeaux and his attorney, Steve Kaplan, and The Advocates’ Rosalyn Park and attorney John Getsinger

At one point, Damon Thibodeaux, on death row for a crime he didn’t commit, wanted to be executed instead of live in solitary confinement.

“I did not want to live like an animal in a cage for years on end, only to lose my case and then have the state kill me anyway,” Thibodeaux told the U.S Senate Judiciary Committee during its hearing on the practice of long-term solitary confinement. “I thought it would be better to end my life as soon as I could and avoid the agony of life in solitary.”

Eating rotten vegetables, enduring 100+ degree temperatures in the summer, and being put on display like an animal during prison tours was part of his life on death row, he told the committee.

“I saw men lose their minds, and some screamed at all hours of the night,” he recalled in the written portion of his testimony.

Thibodeaux lived for almost 15 years locked in an 8 by 10 cell 23 hours a day and in near-isolation at the notorious Louisiana State Penitentiary. Released in 2012, he was the 300th person nationwide and the 18th on death row to be exonerated by DNA evidence. His legal team included attorneys from the Minnesota law firm of Fredrikson & Byron, a firm that volunteers with The Advocates for Human Rights.

The Advocates has submitted a shadow report to the United Nations Human Rights Committee, detailing how the death penalty in the U.S. violates basic human rights, including the right to an effective remedy for those exonerated from death row. The shadow report was prepared for the United Nations’ review of the U.S.’s human rights record in March.

On the steering committee of the World Coalition Against the Death Penalty, The Advocates presented at the 2013 5th World Congress Against the Death Penalty, held in June in Madrid, Spain and coordinated the 2013 World Day Against the Death Penalty campaign.

Read more about Thibodeaux and his testimony in an article that appeared in the Star Tribune and in an interview on Huffington Post.

 

Dennis McGuire’s Execution: A Real-Life — or Real-Death — Example of Cruel and Inhuman Punishment

Death Penalty Image for CCOhio officials put Dennis McGuire to death this week using a new two-drug combination that had never been tested. Ohio’s experiment with the new two-drug injection is a real-life — or real-death — example of what can go wrong when states are allowed to execute people using untested and dubious execution methods.

In arguments prior to the execution, McGuire’s attorneys warned that the drug combination could cause a state of terror for him because their client would experience “air hunger” in his struggle to breathe. Witnesses to the execution report that McGuire made loud snorting noises and gasped and struggled for air for about 20 minutes until he died.

“Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” McGuire’s daughter, Amber McGuire, is reported to have said. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.”

The majority of the 32 death penalty states in the U.S. and the U.S. federal government use lethal injection as the primary means to execute prisoners. Contrary to what was administered to McGuire, these governments have traditionally used a three-drug combination to put people to death. But now, governments are resorting to new combinations because the drugs needed for the three-drug injection are difficult to obtain. The drugs’ sources are drying up, caused by foreign government regulations, European Union restrictions placed on the supply, and drug corporations’ positions.

As these drugs have become increasingly harder to obtain, states have begun using other drugs to administer a lethal dose. In turn, pharmaceutical companies have refused to supply these drugs for execution purposes in the U.S.

States are turning to questionable sources—including compounding pharmacies selling drugs that are not FDA-approved—to get the drugs they need to execute people. Obtaining execution drugs that are outside of federal regulation increases the risk of tampering and reduced drug efficacy; this increases the probability of cruel or inhuman treatment or punishment during an execution, a violation of the U.S. Constitution’s Eighth Amendment.

Moreover, several states passed secrecy laws to conceal the identities of their drug suppliers, thus allowing states to withhold critical information from detainees and their families who seek assurances about the drugs’ quality and effectiveness.

Lethal injection has come under constitutional challenge in a number of states for its potential to cause cruel and unusual punishment. Most notably, Kentucky’s three-drug combination came under fire in 2008, when the U.S. Supreme Court held that its lethal injection method does not qualify as cruel and unusual punishment.

Since the Kentucky ruling, U.S. states have faced new challenges in lethal injection because of the clamp down on the drug supply. Lethal injection in the U.S. has now turned into a cat-and-mouse game, with states attempting to procure execution drugs from an international community determined to keep the drugs out of the states’ possession, leading states to turn to untested and uncharted drug protocols as alternatives.

Regardless of whether a three-drug injection or, in the case of McGuire, a two-drug injection is used, there is much concern that these injections cause cruel and inhuman punishment.

McGuire’s gruesome death is a visible, gruesome testimonial that lethal injection is on the path toward cruel and unusual punishment, a violation of the Eighth Amendment.

“No one should die the way my dad did, no matter the circumstances,” said McGuire’s daughter, according to reports.

Hours after the execution, Terry Collins, who served as the Director of the Ohio Department of Rehabilitation and Corrections from 2006 to 2010 and oversaw 33 executions, said that the suffocation execution of McGuire shines the spotlight on the unworkable nature of the problems in the death house. “The experiment has failed and that is plainly obvious,” he said.

The Advocates for Human Rights has submitted a shadow report to the United Nations Human Rights Committee, detailing how the death penalty in the U.S. violates basic human rights, including the right to be free from cruel, inhuman, or degrading treatment or punishment. In its update to the United Nations for the U.S.’s upcoming review in March, The Advocates will include information about McGuire’s execution. It is important that the Human Rights Committee is apprised of this alarming development by which a state is willing to expose a human being to such agony and terror in the interests of executing them.

By: Attorney Rosalyn Park, The Advocates for Human Rights’ director of research, represents The Advocates on the World Coalition Against the Death Penalty steering committee. She chairs the Working Group for World Day Against the Death Penalty and is active on several other working groups. Before beginning work with The Advocates, Rosalyn interned with Anti-Slavery International in London as an Upper Midwest International Human Rights Fellow.