By Austin Sarat
Alabama Gov. Kay Ivey has announced a pause in her state’s use of capital punishment. It follows a run of botched lethal injection executions in the state, including two where the procedure had to be abandoned before the inmates succumbed to the cocktail of death drugs.
The last straw appears to have been the failed attempt to put Kenneth Smith to death on Nov. 17, 2022. The state had to call off the procedure after difficulty in securing an IV line.
But that was just the latest execution not to go as planned. In September, Alabama had to stop the execution of Alan Eugene Miller after prison officials poked him with needles for more than an hour because they could not find a usable vein in which to secure an IV.
Even when the execution was carried out resulting in death, the manner has been problematic. When the state executed Joe Nathan James on July 28, 2022, the process – which is normally supposed to be over in a matter of minutes – took more than three hours. During that time, officials tried repeatedly to insert the IV lines necessary to carry the deadly drugs and jabbed James with needles.
In a statement on Nov. 21, Ivey ordered the state Department of Corrections to do a thorough review of the procedures used in executions and asked the state’s attorney general, Steve Marshall, to stop the process for two upcoming executions.
Alabama officials have blamed their problems on what they have described as frivolous, last-minute legal maneuvers by death penalty defense lawyers. In the cases of Miller and Smith, state officials claimed that they ran out of time before the death warrant was due to expire.
But whatever the cause, Alabama’s execution difficulties are not unique to that state.
My research shows that since 1900, in states across the country, lethal injections have been more frequently botched than any of the other type of execution methods used throughout that period. This includes hanging, electrocution, the gas chamber and the firing squad – even though these approaches are not without their problems.
The early history of lethal injection
Lethal injection was first considered by the state of New York in the late 1880s when it convened a blue ribbon commission to study alternatives to hanging. During its deliberations, Dr. Julius Mount Bleyer invited the commission to envision a future in which a person condemned to death “could be executed on his bed in his cell with a 6-gram injection of sulfate of morphine.”
Bleyer and his allies argued that the procedure would be painless. They said that unlike hanging, the method could not be messed up. It also would be cheap, they claimed – all that was needed was a needle and a small amount of morphine.
Lethal injection’s critics told the commission that the method would actually be easily botched, especially if doctors did not conduct the procedure. And even when done right, those in favor of the death penalty as the ultimate sentence further argued that it would be too humane. It would take the dread out of death and dampen capital punishment’s deterrent effect.
Ultimately, lethal injection’s opponents prevailed, aided by the medical community’s unwavering stance against it. Doctors “did not want the syringe, which was associated with the alleviation of human suffering, to become an instrument of death.”
For nearly 100 years after New York’s decision, no jurisdiction in the United States authorized execution by lethal injection. But the early debate over lethal injection foreshadowed arguments that were heard in 1977 during Oklahoma’s consideration of this execution method.
Proponents echoed Bleyer and declared that executions using this method could be accomplished with “no struggle, no stench, no pain.”
This time they won.
The specific drugs to be used in lethal injection – the anesthetic sodium thiopental and pancuronium bromide, a muscle relaxant – would not be chosen until four years later. Although the original law only called for those two drugs, a third drug was soon added: potassium chloride, which causes cardiac arrest.
Together, these three drugs would make up what became the “standard” three-drug, lethal injection protocol. And what started in Oklahoma spread quickly. Lethal injection soon became the execution method of choice across the United States in every state that had the death penalty.
Lethal injection’s troubles
But right from the start, administering lethal injections proved to be a complex procedure that was difficult to get right. In fact, the first use of lethal injection by Texas in 1982 gave a foretaste of some of the problems that would later come to characterize the method of execution.
The Texas team charged with executing a prisoner named Charles Brooks repeatedly failed in their efforts to insert an IV into a vein in his arm, splattering blood onto the sheet covering his body. And after the IV was secured and the drugs began to flow, Brooks seemed to experience considerable pain.
The difficulties in Brooks’ execution and in subsequent lethal injections result from the fact that medical ethics do not allow doctors to take part in choosing the drugs or administering them. In the place of doctors, prison officials are responsible for the lethal injection procedure. In addition, dosages of the drugs used are standardized rather than tailored to the needs of particular inmates as they would be in a medical procedure. As a result, sometimes the lethal injection drugs don’t work correctly.
Despite the effort to medicalize executions, the history of lethal injection has been anything but smooth, sterile and predictable. In fact, my research reveals that of the 1,054 executions carried out from 1982 to 2010 using the standard three-drug lethal injection protocol, more than 7% were botched.
Since then, owing in part to difficulties death penalty states have had in acquiring drugs for the standard three-drug protocol, things appear to have gotten worse. States have turned to questionable drug suppliers, including compounding pharmacies that are not subject to extensive regulation by the Food and Drug Administration.
In the last decade, states have used no less than 10 different drug combinations in lethal injections. Some of them were used multiple times, while others were used just once.
As states have experimented in the hope of finding a reliable drug protocol, my research shows that botched executions have occurred as much as 20% of the time, depending on which of the newer drug protocols is employed.
During some of those executions, inmates have cried out in pain and repeatedly gasped for breath long after they were supposed to have been rendered unconscious.
In September 2020, an NPR investigation helped explain the high rate of bungled executions. It found signs of pulmonary edema fluid filling the lungs in many of the post-lethal injection autopsies it reviewed. Those autopsies reveal that inmates’ lungs failed while they continued to try to breathe, causing them to feel as if they were drowning and suffocating.
Responding to lethal injection’s problems
Alabama now joins Ohio and Tennessee as states that have paused executions and launched investigations after lethal injection failures. Other states have resurrected previously discredited methods of execution – like electrocution or the firing squad – and added them to their menu of execution options on the books.
Lethal injection’s problems also have contributed to the decision of 11 states to abolish the death penalty since 2007.
Reviewing the history of the different execution methods used in this country, Supreme Court Justice Sonya Sotomayor wrote in 2017: “States develop a method of execution, which is generally accepted for a time. Science then reveals that … the states’ chosen method of execution causes unconstitutional levels of suffering.”
And, referring specifically to lethal injection and its problems, she observed, “What cruel irony that the method [of execution] that appears most humane may turn out to be our most cruel experiment yet.”
Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College.
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