August 17, 2008
Too Fat to Execute? Ohio's Capital Punishment DilemmaBy Henry P. Wickham, Jr.
An adage has it that one can never be too thin or too rich, and this adage is now being tested. Richard Cooey, a convicted double murderer, currently on Ohio's Death Row, seeks to prove that there are times when one cannot be too fat. Cooey, through the Ohio Public Defenders' Office, seeks to enjoin his October 14, 2008 execution date on the grounds that (1) he may be too fat to be executed by lethal injection, and (2) his migraine medications may interfere with the anesthetic component of the lethal injection.
Before considering these arguments, readers should be aware of Cooey's crimes. In 1986 (yes, it has been that long) Cooey and a companion went to an overpass over Interstate Route 77 in Ohio. He dropped a piece of concrete onto the car of Wendy Offredo and Dawn McCreedy passing beneath them, disabling their car. He and his companion then offered them a ride to a pay phone. They took the women to a remote area where they beat, raped, and robbed them, before Cooey strangled them with a shoelace. Convicted of two murders, Cooey received the death penalty.
The case that Cooey has just filed in the United States District Court alleges that his obesity (he is five foot seven, 265 pounds) makes access to his veins "difficult and quite possibly impossible under Ohio's current lethal injection protocol." He claims that his use of migraine medications may place him "at increased risk for awareness during this lethal injection process." His attorneys argue that these mere possibilities constitute a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. They also argue that these risks violate the Ohio statute that requires that execution by lethal injection be "of sufficient dosage to quickly and painlessly cause death."
Cooey's case suggests the truth of the poet Hart Crane's observation:
The world is not very "dimensional," and what have become "irreconcilable" here are the understandable desire for a quick and just execution of a brutal killer and the necessity for the rule of law. There are those times when our laws thwart justice (eg. Charles Manson lives and OJ Simpson walks free). The problem with the law in this case is the result of constant challenges to what is "cruel and unusual punishment" banned by our Eighth Amendment and the vagueness of what it means under Ohio law for the State to inflict a "painless" death on the convicted murderer.
In a recent highly publicized decision, Baze v. Rees, the United States Supreme Court upheld the method of legal injection as a constitutionally permissible method of capital punishment. There is a temptation to assume that this decision resolves Cooey's case. However, Cooey challenges neither the constitutionality of the death penalty itself nor the method of lethal injection. For the moment these constitutional issues appear settled by recent The Supreme Court rulings. Rather, Cooey is challenging the application of this procedure of lethal injection to his very specific circumstances.
In Baze v. Rees, Justice Roberts made many points that suggest the weakness in Cooey's Eighth Amendment claims. He notes that the Constitution does not require "avoidance of all risks of pain in carrying out executions." The risk to the criminal must be "sure or very likely to cause serious illness or needless suffering" for the procedure to be cruel and unusual punishment. There must be a "substantial risk of serious harm."
Justice Roberts notes that there have been cases where death in the electric chair did not go as planned. The Court found it constitutionally permissible to re-execute a criminal where the first attempt in the electric chair was ineffective (and, presumably, painful). The Court has recognized that there are always risks of malfunction and error, and that these risks in an otherwise humane method of capital punishment do not invalidate that method. The principles enunciated in Baze v. Rees seem conclusive that the execution of Cooey does not violate the Eighth Amendment, whatever the relatively minimal risks he faces.
The Ohio statute authorizing death by lethal injection poses a more substantial problem for the State. The statute, which is not as well drafted as it might have been, requires that the lethal injection contain "sufficient dosage to quickly and painlessly cause death." One Ohio court has already construed this provision to mean the "avoidance of any unnecessary risk of pain, and as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful." In this decision, a lower court was willing to broaden the concept of "pain" to mere anxiety or something not expressly physical, and there is no telling how far opponents of capital punishment and their friends in the judiciary will take this concept. However, if Cooey's obesity or medications could prevent the anesthetic from working, then there is at least some plausibility to the argument that lethal injection in this case violates Ohio's statute, which is categorical in that the death must be "painless."
Cooey certainly deserves to die, and it is a travesty that he still lives this long after his heinous crimes. Given what he did to his victims, the thought of him enduring pain bothers me not one bit. However, we must live by the rule of law where exceptions to the law are not arbitrarily carved out to fit particular cases. The Ohio Legislature rather inartfully mandates "painless" executions, and it is this language that opens the door to Cooey's challenge.
Under our adversarial judicial system, defense counsel has an obligation to do all that he can to represent Cooey's interests. The Public Defender has crafted a case for Cooey that is both clever and, to some extent, cynical. Because of recent Supreme Court rulings it cannot challenge the death penalty in principle, and it cannot challenge the method of lethal injection itself. In its Federal District Court Complaint, the Public Defender demands that the State come up with a new protocol for lethal injection, one that is presumably tailored to be "painless" and risk free to an obese double murderer who happens to be on migraine medications.
The cynical aspect of this case lies in the unstated agenda that lies behind every challenge in a death penalty case, no matter how valid that overt challenge may be. That other agenda of the Public Defender (and of some members of the Judiciary) is to end capital punishment by judicial fiat rather than through the democratic and legislative processes.
Cooey's latest challenge will take a lot of time. If Cooey prevails, the State will have to adopt new protocols. This will no doubt take more time. Perhaps this new protocol will include the power to put Cooey on a diet and to cut off his medication before the execution. No doubt, the Public Defender will challenge these new protocols, the diet, or the termination of medication as "cruel and unusual punishment" or somehow not "painless."
Meanwhile, the cruel and unusual punishment for the families of the victims will continue unabated, as will the time consumption and the expense incurred by the people. This strategy is what Justice Alioto calls "a de facto ban on capital punishment by adopting method-of-execution rules that lead to litigation gridlock."
This strategy of death to capital punishment by a thousand cases aims at turning every actual execution of the likes of Cooey into a pyrrhric victory for the people. For those who do not support capital punishment, this strategy certainly beats the messiness and inconvenience of actually making arguments and persuading the people to ban capital punishment through their legislatures.
Justice Scalia in Atkins v. Virginia warned that there is a growing perception that the United States courts are "turning the process of the capital trial into a game." In Baze v. Rees, he correctly points out the hypocrisy of judges bemoaning the time and expense of capital cases when they themselves bring about this time and expense with their convoluted capital punishment jurisprudence. In Cooey's case the Ohio legislature inadvertently contributed to this problem.
The seemingly endless pursuit of this agenda to ban capital punishment through the courts only adds to this perception that Cooey's case is just part of a larger game; and damn the victims and any sense of justice.