Botched Executions Are a Feature, Not a Bug, in America’s Death Penalty System

Posted in: Criminal Law

Botched executions occur with stunning regularity in the United States. Their frequency has increased during the last decade as death penalty states experimented with different lethal injection drugs and drug combinations. Executions are botched when they depart significantly from standard operating procedure or the government’s execution protocol.

From 1890 to 2010 such departures happened in 3% of all the executions carried out in the United States. And the most unreliable and problematic execution method is the one now used most often: lethal injection. In the last decade, 8.4% of all lethal injections have been botched.

Surprisingly, the regularity of botched executions has not yet led American courts, or citizens in states with capital punishment, to conclude that the death penalty should be ended because it violates the 8th Amendment’s ban on “cruel” punishment.

For citizens, this failure is in part attributable to the way botched executions are covered in the news media. Other contributing factors include the concerted efforts of death penalty states to hide information about the drugs they use as well as what happens during an execution. In addition, states have adapted the protocols that govern executions in order to make it harder to identify when departures occur.

A predictable pattern plays out in the media following mishaps in execution chambers across the United States. Defense lawyers and media witnesses describe, often in great detail, grisly scenes of prolonged, painful executions.

But, often in the same article or report, side-by side with those disturbing descriptions, spokespersons for the state explain away any anomalies and claim that everything went according to plan.

This pattern was on display following John Marion Grant’s October 28 botched execution in Oklahoma.

Media witnesses detailed what they saw when the lethal drugs began flowing. Grant started to convulse and vomit. His convulsions continued until the second and third drugs in Oklahoma’s protocol paralyzed him and stopped his heart.

But as a report in Newsweek noted, “The account of Grant’s execution from reporters who witnessed it differed dramatically from the version offered by the state Department of Corrections—a spokesman said it ‘was carried out in accordance with Oklahoma Department of Corrections’ protocols and without complication.’”

Newsweek quoted law professor Deborah Denno, who said, “It’s so typical for the Department of Corrections to say that what happened in the course of the botched execution… is normal procedure.”

Following Grant’s execution, Oklahoma Governor Kevin Stitt released a statement that made no reference to any problems during Grant’s execution. “Today,” Stitt said, “the Department of Corrections carried out the law of the State of Oklahoma and delivered justice to Gay Carter’s [the person Grant was convicted of killing] family.”

The kind of reporting found in Newsweek’s coverage of Grant’s execution is what journalism professor David Mindich labels the “seesaw” model of objectivity. “The idea here,” he explains, “is that journalists can find truth by offering two competing truth claims.” When covering a controversial subject like botched executions, the journalist is obliged to gather quotations from two sides of the issue to satisfy the demand of objectivity.

Today, in the wake of any mishap in the death chamber, different perspectives vie for preeminence in news coverage. Defense lawyers, media witnesses, and death penalty opponents are all given a voice, which is almost always counteracted with reassurances offered by state actors. The sequence matters, as if the reassurances of the state have greater merit than the narrative of those who witnessed the pain and suffering of the condemned.

In most cases, a debate is staged—but a resolution is not offered. This “balanced” approach to reporting can also leave readers to believe that what really happened in the execution chamber is simply a matter of interpretation and conflicting perspectives.

Secrecy also complicates the effort to identify what goes wrong and why problems occur during executions. Of course, some kinds of secrecy have almost always been part of executions, from masked executions to limits on what witnesses are allowed to see.

But during the last decade, efforts to conceal crucial aspects of the execution process have escalated. As the Death Penalty Information Center reports, “Since January 2011, legislatures in thirteen states have enacted new secrecy statutes that conceal vital information about the execution process. Of the seventeen states that have carried out 246 lethal-injection executions between January 1, 2011 and August 31, 2018, all withheld at least some information about the execution process. All but one withheld information about the source of their execution drugs.”

The DPIC chronicles new efforts that are being made in death penalty states to hide what happens during an execution. “Fourteen states prevented witnesses from seeing at least some part of the execution. Fifteen prevented witnesses from hearing what was happening inside the execution chamber. None of the seventeen allowed witnesses to know when each of the drugs was administered. This retreat into secrecy has occurred at the same time that states have conducted some of the most problematic executions in American history.”

Indeed, on the day of Grant’s execution, Oklahoma refused his lawyer’s request to know the precise drugs that would be used to put him to death and the identity of the drug suppliers. It said that such information was “subject to absolute protection/non-disclosure” under Oklahoma law.

In addition to increased secrecy, death penalty states react to problems that occur during executions by making the regulations and protocols that govern those executions less specific. They explicitly or implicitly authorize officials to exercise discretion by introducing greater ambiguity in the language governing crucial parts of their protocols.

For example, even as some death penalty states have added more checks to ensure that IVs are working, they also have allowed executioners to attempt to set lines for longer periods of time and in more places on the inmates’ bodies. They have done so by requiring that officials act in a “reasonable” manner, but without defining what counts as reasonable. Ohio’s procedure, exemplifying the language used in many post-2010 death penalty protocols, allows its IV team to “make such a number of attempts to establish an IV site as may be reasonable (emphasis added).”

States also have added ambiguity to the amount of time an execution is supposed to take. No state procedures now specify a maximum time that should pass between injection and death. As a result, lethal injection’s critics cannot point to a specific regulation in order to hold states accountable for long and painful executions.

While botched executions like Grant’s continue to occur, and while states have imposed new barriers to prevent exposure of those breakdowns in their death penalty systems, American courts have stood by indifferently or actively acquiesced in those developments. They treat botched executions as unavoidable accidents for which no one can be held accountable. And they defer to state decisions about what the public can know about the executions carried out in its name.

But both judges and citizens need to recognize that botched executions, like Grant’s, are not mistakes. As Denno notes, “It’s a predictable pattern…and they’ll happen again.”

The only way to break that pattern is to stop altogether the ghastly practice of using death as a punishment.

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