Littwin: Counting the gasps |

Littwin: Counting the gasps

Mike Littwin
Fair and Unbalanced

This is the modern story of the death penalty. It begins with a horrific crime and ends, 25 years later, with a botched execution as the state proceeds using an untried combination of killing drugs. Is that justice — and if not, what exactly is it?

It took nearly two hours for James R. Wood III, convicted of double murder, to die in Arizona on Wednesday. That much is inarguable.

It was the third botched execution this year, although some Arizona officials tried to deny that it was botched at all, even as Gov. Jan Brewer, who defended the execution as “lawful,” called for an internal investigation.

Reporters who witnessed the execution said that Wood was gasping, as one put it, “like a fish onshore gulping for air.” As time wore on and Wood did not die, one reporter began counting the gasps — and got to more than 600. Meanwhile, a spokeswoman for the Arizona attorney general, who also witnessed the execution, said Wood was not gasping but simply snoring. She said his death was “peaceful” and that the reporters and the lawyers basically made the rest up.

And so it comes down to gasping versus sleeping, snorting versus snoring and how many wheezes — as Slate’s Dahlia Lithwick wondered — are too many during one execution.

It is a strange place in which we find ourselves — the last of our so-called “peer” nations to use the death penalty and, thus, one of the last still arguing about whether the act itself is sufficiently humane. What we know is that the execution took so long that the lawyers filed appeals to the Supreme Court in the middle of it. The answer from the Supreme Court came back — appeal denied — as Wood was finally dying.

It’s the argument we’re having with ourselves that has led to the foul-ups. Drug companies in the United States and Europe don’t want anything to do with executions. And so the cocktails often come from unregulated compounding pharmacies, whose identities become state secrets.

Arizona had used pentobarbital for executions but apparently couldn’t find any. This is where we are today — where states have to score drugs to kill their death-row killers.

The combination of drugs used in Arizona was apparently untested. And so Wood’s lawyers, noting the recent botched deaths in Oklahoma and Ohio, went to court to learn the source of the drugs and how they’d be administered. One court granted a stay. The Supreme Court overturned it. The Arizona Supreme Court issued a stay and then revoked it.

The process in death-penalty cases like Wood’s can go on for 25 years because we want to be sure to get them right — and yet we almost certainly get some wrong anyway. And even if we know they’re right, we know, too, that death is randomly assigned. A murderer’s chance of getting the death penalty has far less to do with the crime he committed than where he committed it, his race and class, and how he performed on an IQ test.

Hardly anyone bothers to make the deterrence argument anymore. And botched executions are a strange kind of closure.

Wood killed Eugene and Debra Deitz, father and daughter. Debra was an ex-girlfriend who had left Wood after he had beaten her. She filed for a protection order, but after months of threats, Wood came to the family’s auto-repair shop, killed the father, fought with an uncle and killed Debra before getting in a shoot-out with the cops.

Debra’s sister witnessed the execution. “You don’t know what excruciating is,” she told reporters after one had used “excruciating” to describe Wood’s death. “Seeing your dad lying there in a pool of blood, seeing your sister lying there in a pool of blood — that’s excruciating.”

As I’ve written before, the best argument for the death penalty is usually the criminal himself. But we constitutionally reject cruel and unusual punishment, and — despite Supreme Court rulings to the contrary — what else could the death penalty be in 2014?

After Wood’s case was successfully appealed in the 9th Circuit, Chief Judge Alex Kozinski, a well-known provocateur, wrote a dissent saying that the use of lethal injections was a misguided attempt to make executions “look serene and peaceful” when in fact they are “brutal, savage events.”

He suggested, instead, that we use the guillotine, although he said he doubted most people would approve. The electric chair, hanging and the gas chamber, he noted, are hardly foolproof.

“The firing squad strikes me as the most promising,” Kozinski wrote. “Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. … Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. 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.”

Kozinksi told the Los Angeles Times that he was “generally not opposed to the death penalty.” Still, I’m not sure how seriously to take the judge’s remarks. I wonder if he wanted us to try them out and see how they sound as we count the gasps.

Mike Littwin runs Sundays in The Aspen Times. A former columnist for the Rocky Mountain News and Denver Post, he currently writes for

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