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On its face, the U.S. Supreme Court’s decision Monday to allow the continued use of a specific, controversial form of lethal injection in death penalty cases wouldn’t seem to have much to do with Hawaii. After all, Hawaii eliminated capital punishment 58 years ago — two years before it even became a state.
But two Hawaii inmates serving time in a for-profit Arizona prison will go to trial next year on charges they murdered a fellow inmate in that prison, and prosecutors will seek the death penalty for both. Because the Supreme Court on Monday upheld the use of a controversial drug that happens to be used in Arizona executions, the high court may have set the stage for Miti Maugaotea Jr. and Micah Kanahele to die from the effects of a drug whose use wouldn’t even be a consideration in their home state.
The SCOTUS decision centered on the sedative midazolam, which is used in executions in Oklahoma, Florida, Ohio, Louisiana, Kentucky and, of course, Arizona and is under consideration by a handful of other states. Midazolam has been used in multiple cases where an execution went awry.
In Ohio, for instance, an inmate being executed last year “struggled, made guttural noises, gasped for air and choked for about 10 minutes” before succumbing, according to the Associated Press reporter who witnessed the execution. A similarly difficult execution took place in Arizona last year, as well, with death significantly prolonged, according to the Washington-based Death Penalty Information Center.
In a 5-4 decision, the justices ruled Monday that the Oklahoma inmates who brought the case failed to make an effective case that midazolam might cause severe pain and failed to identify a preferable alternative method of execution.
The tension between the justices in announcing the hotly contested decision was so great that two dissenters — Justices Stephen G. Breyer and Ruth Bader Ginsburg — came close to announcing they wanted to rule the death penalty unconstitutional, prompting bitter rejoinders from Justices Clarence Thomas and Antonin Scalia.
“Rather than try to patch up the death penalty’s legal wounds one at a time,” Justice Breyer wrote in a detailed, 46-page dissent, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”
That’s the question that ought to have been answered in Monday’s decision. The 8th Amendment bans “cruel and unusual punishment,” and in three executions in which midazolam was used last year, the deaths were unusually long and obviously very painful. Allowing the continued use of a sedative that contributed to such outcomes represents an abdication of legal responsibility on the part of the majority and puts the righteous indignation of the court’s minority in perspective.
Hawaii executed 75 people between 1897 and 1944, and the last execution, in which a Filipino was hanged for killing a woman in a Kauai pineapple field, spurred Hawaii’s territorial lawmakers to end the death penalty.
Part of the reason was that Hawaii disproportionately executed people of color — Filipinos, Japanese and Native Hawaiians. “According to an analysis of these executions published in the Hawaii Journal of History, 64 percent of those put to death were either Hawaiian or Filipino. A total of 24 Hawaiians were killed and another 24 Filipinos were. Only a single Caucasian was executed,” Civil Beat columnist Ian Lind wrote last year.
Since then, the death penalty has come up as a potential sentence in Hawaii only once. Last year, former Army soldier Naeem Williams was tried here for the beating death of his 5-year-old daughter. Because the case was heard in the federal court system, which does have the death penalty, Williams faced it as a possible sentence. He received life in prison instead.
In discussing that case last year with the Associated Press, University of Hawaii law professor Williamson Chang, a frequent Civil Beat contributor, described the death penalty as being at odds with the state’s culture.
“We’re used to a society which does not put people to death,” he said. “It’s a slap in the face to the values of Hawaii.”
Chang may be right: Legislators have tried more than 15 times to reinstate the death penalty, according to DPIC, but each effort failed.
The possibility that Hawaiians might be executed for crimes committed while incarcerated elsewhere might not be as unlikely as one would think. Mahina Uli Silva, for instance, was indicted for allegedly killing his cellmate in Arizona in 2010 and initially faced the death penalty. He later pleaded guilty to second-degree murder.
In all, about 1,400 Hawaii prisoners are in out-of-state for-profit prison facilities run by Corrections Corporation of America in Arizona.
Kanehele and Maugaotea both face trial for the 2010 murder of another Hawaii prisoner, Bronson Nunuha. Trial is set for August of next year, and prosecutors will seek the death penalty, an official with the Pinal County (Arizona) Attorney’s Office confirmed Tuesday.
The crimes that Kanehele and Maugaotea are accused of are horrific. Media accounts say their alleged victim was found stabbed 140 times, with the initials of Kanehele and Maugaotea’s prison gang carved into his chest.
But both inmates are only incarcerated in Arizona because Hawaii found outsourcing its prison needs to CCA a more cost-effective option than building more prisons of its own. While they and others are there, are we comfortable with them being subject to the penalties of Arizona — even a punishment so singular and controversial that we took the highly uncommon step decades ago of outlawing its use in Hawaii?
Our decision in 1957 would suggest we are not. As Chang said last year, Hawaii is a society that does not put people to death, no matter how heinous their crimes. And as Justice Breyer wrote on Monday, the death penalty may well violate the very basis for our democracy — the U.S. Constitution.
If we believe in the values that we claimed in 1957, we’re compelled to think hard about putting Hawaii inmates in facilities where further crimes might result in a penalty we never would have imposed ourselves.
It may be too late for Hawaii to save the unfortunate lives of Kanehele and Maugaotea, whose previous violations and alleged brutal murder of Bronson Nunuha have set in motion wheels of justice that may be beyond this state’s control.
But if we really believe in the values that we claimed in 1957, we should think hard about putting Hawaii inmates in facilities where further crimes might result in a penalty we would never have imposed ourselves. Gov. David Ige, Attorney General Doug Chin and director of the Department of Public Safety Nolan Espinda should use Monday’s controversial Supreme Court decision to examine anew our options under the agreement with CCA and determine whether punishment by death was intended to be part of the incarceration bargain.
Hawaii is one of 19 states plus the District of Columbia that either don’t have the death penalty or don’t have an enforceable death penalty statute. It’s an appropriate point of pride for our state, and we should take steps to ensure that it doesn’t deserve a troubling red asterisk.