Cover-Up, Double-Talk, and Trial and Error Mark Lethal Injection’s Current Crisis

Posted in: Criminal Law

An independent post-mortem examination completed earlier this month confirmed that Alabama’s execution of Joe Nathan James was, as Robert Dunham, the executive director of the Death Penalty Information Center, put it, “among the worst botches in the modern history of the U.S. death penalty.”

James was executed on July 28 for the 1994 murder of Faith Hall (despite the objections of her children). In the early preparations for his death by lethal injection, the execution team had great difficulty finding a vein in which to insert the IV line. State officials kept him secluded for three hours while they repeatedly poked him with needles and subjected him to great suffering.

From start to finish, James’s execution may well have been the longest in American history.

He joined a disturbingly long list of people, including Clayton Lockett, Joseph Wood, Doyle Hamm, Romell Broom and John Marion Grant, whose executions by lethal injection made headlines in recent years when they went horribly wrong.

According to an account in The Atlantic, the post-mortem found that James’s “hands and wrists had been burst by needles, in every place one can bend or flex…. Something terrible had been done to James while he was strapped to a gurney behind closed doors without so much as a lawyer present to protest his treatment or an advocate to observe it.”

Yet the state Department of Corrections insisted that his execution scrupulously followed the protocol and regulations governing Alabama executions. “We have protocols,” a spokesperson for the department said, “and we’re very deliberate in our process, and making sure everything goes according to plan.” He also assured media witnesses gathered to observe James’s death that “nothing out of the ordinary” had happened to him.

More investigation is needed to determine exactly what occurred, but we already know enough to be able to say that the state’s response and incredulous denial of responsibility for problems in James’s execution merits censure. It exemplifies the now all-too-familiar response of death penalty states to lethal injection’s intractable problems.

The standard response—cover-up, double-talk, and a trial-and-error approach to executions‑makes mishaps and failures of the kind that marked the James execution more likely. It also is intended to make it harder to know with certainty when an execution is botched.

As lethal injection’s problems multiplied in the last decade, many death penalty states modified their execution procedures by adding steps that, at first glance, appear to make lethal injection more reliable. These steps include doing consciousness checks, ensuring that the IV is clearly visible, and using backup lines in case the primary line fails.

State protocols lay out decisional contingencies (if x, then y) for the officials responsible for carrying out lethal injections. In recent years, they have come to resemble decision trees with many branches, rather than a simple set of instructions.

Seeming to account for potential problems, the new protocols give executioners legal cover, even as they allow the executioners to take a wider variety of actions.

Some of the procedural changes, like precisely defining the waiting period after the administration of each of the lethal drugs used in an execution, make the process appear, on paper, more precise and mechanical. Yet the great variability in those procedures among death penalty states points to the lack of empirical grounding for them.

Death penalty states don’t really have any idea about what to do to prevent executions from going wrong. With human lives in their hands, they take a trial-and-error approach.

At several critical junctures in the lethal injection process, state protocols are frighteningly ambiguous. The vagueness affords executioners complete flexibility to act as they please when something goes wrong.

For example, even as states have added more checks to ensure that IVs are working, they have allowed executioners to continue trying to set lines for longer periods of time and in more places on the inmates’ bodies. They require only that officials act in a “reasonable” manner, without defining what counts as reasonable.

And some, like the Alabama protocol that governed James’s execution, make no reference at all to how long the process for setting IV lines should take.

Lethal injection protocols also frequently allow officials to exercise discretion if the prescribed drug dosage proves insufficient to kill. My research revealed that nineteen state protocols give officials overseeing the execution discretion to inject additional doses as they see fit.

Some death penalty states (including Arizona, Delaware, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Ohio, Oklahoma, Pennsylvania, and South Dakota) do not even bother to mandate a particular drug cocktail. Instead, they allow officials to choose from a menu of drugs and drug combinations

Ambiguity and discretion provide executioners with a kind of blank check that brings lingering, fraught deaths into the fold of legally acceptable executions. All lethal injection protocols also contain gaps and omissions about what officials should do in crucial parts of the lethal injection process

Executioners can modify execution procedures on the fly.

Rather than preventing unnecessary pain and suffering, the protocols enable officials to act unethically and disregard a condemned inmate’s evident distress.

Across this country, the lethal injection story is one of bureaucratic maneuver and adaptation designed to keep the machinery of death running. Death penalty states do what they need to do to stay one step ahead of what courts might require and make lethal injection work in spite of its vexing and continuing problems.

The constant, seemingly ad hoc, changes to state protocols have made lethal injection more, not less, haphazard and unpredictable.

As the James execution demonstrated, correctional officials are often ill-equipped to make sound decisions about lethal injection’s implementation. Law professor Corinna Barrett Lain correctly notes that: “Prison personnel have no expertise in deciding what drugs to use or how to perform the procedure…. [L]ethal injection drug protocols are decided by Google searches and other decision-making processes that would be patently unacceptable in any other area of administrative law.”

The cover-up, double-talk, and trial-and-error approach that mark lethal injection’s recent history mean that problems of the kind that occurred in the James execution will keep happening. Unless we stop using lethal injection, its most serious and recurring defects will not be fixed, and the suffering of those subject to this supposedly most humane execution method will not be alleviated.

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