Executions in the United States frequently go seriously wrong. That is a well-recognized and sad fact of this nation’s death penalty system. Problems often occur behind the scenes, in the process of preparing an inmate to die.
In those moments, the state’s exercise of power is virtually unchecked. For those being executed that power can be a source of terror and torture.
That is one of the reasons why death row inmates in Oklahoma brought suit in the hopes of persuading courts to recognize their right to have lawyers present throughout the execution process. They claimed that the Sixth Amendment requires that attorneys be able to “view the entire execution procedure, from start to finish.” Being present would allow them to “identify, object to, challenge or correct any issues with the IV-setting or drug administration.”
The inmates argued that parts of the Oklahoma execution protocol are unconstitutional because they do not allow lawyers to have access to a telephone during the execution process.
The plaintiffs also questioned provisions that terminate their access to counsel “two hours prior to the execution or earlier if necessary,” prevent their lawyers from seeing “pre-execution readiness information,” and allow prison officials to close the curtain between the execution chamber and the witness room “at any time.”
Those restrictions, the plaintiffs rightly contended, make it impossible for them to file any Eighth Amendment claim should serious problems occur during their executions.
On October 19, the U.S. Court of Appeals for the Tenth Circuit ruled against them and in favor of the new regime of execution secrecy that protects the state’s power over the condemned even as it exposes them to great jeopardy.
As my collaborators and I argue in a forthcoming article, that regime is a marked departure from execution practices throughout American history. Until 1936, executions in America were carried out in public. And, even after they were moved behind prison walls, information about executions, executioners, and execution methods was generally available to the public.
Since 2010, fourteen states have enacted new laws. that extend and intensify secrecy surrounding executions.
Those laws have varying degrees of specificity, but, among other things, all prohibit the disclosure of the identity of the executioner and others directly involved in carrying out executions. They cover crucial details about the drugs themselves, including, in some instances, the type of drugs used in executions, details about the drugs’ makeup, information about the drug cocktail or combination and how it was developed, and the identities of lethal injection drug suppliers.
A few states have limited the number of media witnesses and the ways they can cover executions. Death penalty protocols define how much of an execution witnesses are allowed to see. Some even keep secret details about when and how the inmate is transported to the execution chamber.
And, in states like Oklahoma, the limitations imposed also apply to lawyers representing the person being executed.
What can happen off stage when an inmate is being readied to die? Plenty. And often none of it is good.
Let’s take the case of Joe Nathan James, executed by lethal injection in Alabama on July 28, 2022. Prison officials spent three hours trying to find a useable vein in which they could insert the IV needed to carry the deadly drugs.
What happened to James during those three hours?
The journalist Elizabeth Bruenig notes:
The Alabama DOC gave the gathered reporters no explanation for the long delay, or for his strange demeanor in the chamber….John Hamm, the corrections department commissioner, said, in somewhat scattered fashion, that he couldn’t “overemphasize this process. We’re carrying out the ultimate punishment, the execution of an inmate. And we have protocols and we’re very deliberate in our process, and making sure everything goes according to plan. So if that takes a few minutes or a few hours, that’s what we do.”
But an autopsy report offered a radically different picture of the ultimate punishment that James experienced. It revealed that the process of securing the IV lines did not go according to plan and that James suffered greatly during the three hours when he was alone with the execution team.
That team repeatedly forced needles into his arms and hands and did a so-called cut down procedure, in which a vein is exposed surgically. No one was there to protest against this brutal treatment or to seek emergency legal redress.
James’s experience is not unusual. Difficulties finding a vein and prolonged efforts to do so regularly occur during lethal injection executions. That is why the presence of lawyers is so important.
So why did the Tenth Circuit disagree?
The answer: The court ruled that the plaintiffs lacked standing to challenge the parts of Oklahoma’s execution protocol that prevent their lawyers from serving as a “proctor” during the execution process.
In the court’s view, the plaintiffs failed to prove that the state planned to prevent them from seeking legal redress during the execution process. It was not enough in the court’s view to raise what it called “a generic possibility that something might go wrong during their individual executions.”
While the court acknowledged that standing’s “traditional injury analysis makes no sense when many of the claims could not even be recognized until during the execution process,” it nonetheless insisted that no federal court could exercise jurisdiction based on “conjectural or hypothetical” injuries.
But there was nothing hypothetical about what happened to Joe Nathan James or what Oklahoma did to Clayton Lockett in 2014 and others during its recent string of botched lethal injections. There is nothing hypothetical or conjectural about lethal injection’s nationwide track record of serious mishaps.
Ignoring that track record says more about the Tenth Circuit panel’s desire to allow Oklahoma to get on with the business of carrying out executions than it does about the real risk of botched lethal injections. The court dismissed the plaintiffs’ fear of being subject to a botched execution as not “reasonably founded.”
But the circuit court revealed why it chose to offer a cramped interpretation of standing and to keep lawyers at a distance during the execution when it highlighted what it called “the practical realities attendant to litigation and emergency adjudication of any claim lodged while an execution is in progress.”
The Tenth Circuit concluded, without offering any supporting evidence, that allowing lawyers to be present throughout an execution process “ risked subjecting the State to dilatory or speculative suits.”
More than fifty years ago, in Miranda v Arizona, the US Supreme Court warned about the dangers inherent in private settings and circumstances which allow state officials to subjugate and intimidate people. And it recognized that the real difference that lawyers would make if allowed to go into previously secret spaces, like police interrogation rooms.
In 2008, the Court held that the right to counsel attaches “when the government has used the judicial machinery to signal a commitment to prosecute…. Once attachment occurs, the accused at least is entitled to the presence of … counsel during any “critical stage” of the post-attachment proceedings; what makes a stage critical is what shows the need for counsel’s presence.”
Surely the execution process is such a “critical stage.”
It is time for courts to recognize the execution process is such a “critical stage” and the right to legal representation throughout that process. Doing so would diminish the possibility of excessive cruelty in what is already an inhumane punitive practice.