It Is Time to End the Lethal Injection Mess

Posted in: Criminal Procedure

On June 23, amidst all furor over its gun rights and abortion decisions, the Supreme Court handed down a little noticed death penalty decision, Nance v Ward. In that case, a five-Justice majority ruled that death row inmates could file suits using  42 U.S.C. Section 1983, a federal law that authorizes citizens to sue in federal court for the deprivation of rights, to bring suit alleging that an execution method violated the Eighth Amendment.

Michael Nance, who was sentenced to death in 2002, will now be able to proceed with his suit contesting Georgia’s plan to execute him by lethal injection.

Nance suffers from medical conditions that have compromised his veins. To use lethal injection, the only execution method now authorized by state law, prison authorities would have to “cut his neck” to establish an intravenous execution line. He also claims that his long-time use of a drug for back pain would diminish the effect of the sedative used in Georgia’s drug cocktail. Nance alleges that under such conditions lethal injection would be “torturous.”

He asks to be executed by a firing squad.

Nance’s objection to lethal injection might seem idiosyncratic and limited to his individual circumstances. But it is just the latest sign of lethal injection’s crippling problems.

As my collaborators and I point out in our new book Lethal Injection and the False Promise of Humane Execution, what was once thought to be this country’s most humane execution method has turned out to be its most problematic. As a result, death row inmates across the country are challenging the constitutionality of lethal injection and, where they have an option, choosing to die by other methods like the electric chair or the firing squad.

That litigation has helped surface lethal injection’s ongoing and irreparable problems.

As Elizabeth Bruenig, a staff writer at The Atlantic, notes, “In some states, evidence that lethal injection is inhumane has already led to de facto shutdowns of execution chambers—California, for instance, hasn’t attempted an execution since a sprawling 2006 method-of-execution lawsuit unearthed disturbing facts about the state’s protocol.”

It is time to for death penalty states to follow California’s example, end execution by lethal injection, and bring the machinery of death to a halt.

Lethal injection’s problems are nothing new. They have been present from its initial authorization in Oklahoma in 1977 and its first use in Texas’s 1982 execution of Charles Brooks.

Its development was anything but scientific, more the product of hunch and seat-of-the-pants judgments than careful study. The original sponsors of lethal injection in Oklahoma weren’t sure how to draft the authorizing legislation and describe how it would kill. They needed advice—what drugs should be used? And how should they be administered?

The sponsors went from one medical practitioner to another seeking help imagining what lethal injections should look like in the United States. They were repeatedly rebuked.

Ultimately, A. Jay Chapman, the state’s chief medical examiner, agreed to work with them. He believed that lethal injection would be less violent and gruesome than the electric chair. However, Chapman conceded that he was “an expert in dead bodies but not an expert in getting them that way.”

Undaunted by his lack of expertise, Chapman offered a blueprint for Oklahoma’s lethal injection law. When asked why he selected a three-drug combination of an anesthetic, a paralytic agent, and a drug to stop the heart, Chapman admitted that “[he] didn’t do any research” and “just knew from having been placed under anesthesia [himself] what [the execution] needed.”

Although Chapman was neither an anesthesiologist nor a toxicologist, the Oklahoma statute copied his proposal almost word-for-word and helped make it the model for almost all lethal injection statutes in the states that reinstated the death penalty.

From its introduction until 2009, every execution by lethal injection was carried using Chapman’s three-drug protocol. Nonetheless, during that same period, more lethal injections were botched than had been true of any other method of execution in American history.

Lethal injection’s problems accelerated after 2009 when pharmaceutical companies refused to supply the drugs needed for the three-drug cocktail.

Increasingly desperate to find ways to obtain drugs necessary for their executions, death penalty states began to experiment with new drugs and untried drug combinations.

By the end of 2020, they had used at least ten distinct drug protocols in their executions. Some used barbiturate combinations, others used barbiturate overdoses, and still others used sedative combinations.  Some of those protocols were used multiple times, while some were used just once.

Even so, the traditional three-drug protocol was all but forgotten. After a decade of experimentation, all that remained of the original lethal injection paradigm is a needle in the inmate’s arm and a declaration of death.

In my research on lethal injection, I found that between 2010 and 2020, 8.4 percent of lethal injection executions were botched. In sedative combination executions, the rate skyrocketed to 22.4 percent. Some of those gruesome spectacles, like Oklahoma’s 2014 execution of Clayton Lockett and Arizona’s execution of Joseph Wood, made national headlines.

Other research carried out by National Public Radio found signs of pulmonary edema—fluid filling the lungs—in 84 percent of the 216 post-lethal injection autopsies it reviewed. Some autopsies reveal that inmates’ lungs filled while they continued to breathe, which would cause them to feel as if they were drowning and suffocating.

Given lethal injection’s record, it is no wonder that Michael Nance, and other death row inmates, want to die by some other means.

Summarizing lethal injection’s history in a 2014 opinion, former Ninth Circuit Court of Appeals Judge Alex Kozinski got it right when he said of execution by lethal injection that “the enterprise is flawed.”

As Kozinski explained, “Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful. … But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

Ending the lethal injection mass and acknowledging the “horrendous brutality” of any method of execution should foretell the end of the death penalty itself.

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