Black People Pay a High Price for this Country’s Illusory Pursuit of Humane Executions

Posted in: Criminal Law

Since the end of the 19th century, the United States has been on a quest to find a method of execution that would be safe, reliable, and humane. We have moved from hanging to the electric chair, from the electric chair to the gas chamber, from the gas chamber to lethal injection, and from lethal injection to nitrogen hypoxia. Along the way, this country has sometimes even used the firing squad.

As we moved from one execution method to the next, each new method’s proponents have said the same things. Political leaders and judges have proclaimed previous methods barbaric—or simply archaic—and touted the ability of the method that they were advocating to produce a humane death.

The statement made by federal district court Judge Henry Woods in a 1992 death penalty decision was typical. Writing about the constitutionality of lethal injection Woods said, “There is general agreement that lethal injection is at present the most humane type of execution available and is far preferable to the sometimes barbaric means employed in the past.”

Seven years later, the Florida Supreme Court followed suit when it observed that “just as electrocution may have been originally evaluated in comparison with hanging, he noted that the overwhelming majority of death penalty jurisdictions have long since rejected use of the electric chair and have turned to lethal injection is a more humane punishment.”

But experience has taught a hard lesson. There is no foolproof method of execution.

Far from being an improvement over the electric chair’s dismal record, lethal injection has shown itself to be a very problematic way of putting people to death. In fact, lethal injection executions have been botched more frequently than any other method used in the last 150 years.

Until now, we haven’t known who has borne the brunt of those failures.

Last week, Reprieve, which describes itself as “a legal action non-governmental organization,” released a report that lifted the veil on that issue. It showed that nationwide, “Half of the botched lethal injection executions were of Black people, though only a third of the prisoners executed were Black.”

A National Public Radio story about the report explained that “The pattern was starkest in some Southern states. In Arkansas, Oklahoma, and Georgia, three-quarters or more of the botched lethal injection executions were of Black people, though they accounted only for a third or less of executions in those states.”

Reprieve used a very comprehensive definition of botched executions. They classified a lethal injection as botched if there was:

1. Evidence of consciousness after lethal drug(s) were administered (e.g., speaking; sitting up and moving); 2. Medical complications (e.g. an allergic reaction to the drug(s)); 3. Problems with drug(s) (e.g., the drug(s) solidifying and clogging the IV tube; the use of the wrong drug); 4. Intravenous (IV) access and administration issues (e.g., multiple IV insertion attempts; incorrect IV insertion); 5. Visible or audible expressions of pain after lethal drug(s) were administered (e.g., screams; groans; and reports of feeling pain); 6. Unanticipated reactions to the drug(s) or procedure (e.g., frothing at the mouth; vomiting; violent convulsions); 7. Executions that were halted while in progress due to one or more of the complications detailed above.

Using these criteria, Reprieve found that of the 1,407 lethal injection executions carried out or attempted from 1977 to December 2023, 73 of them were botched. 8% of the executions of Black people were botched (37 out of 465), compared to 4% of the executions of white people (28 out of 780).

These findings add to what we have long known, namely that race has played, and continues to play, a role at every stage of the death penalty system.

As Equal Justice USA notes, “Discrimination in capital punishment was explicitly written in many states’ laws during slavery. Black people – whether slaves or not – faced the death penalty for crimes that… (would not carry a death sentence) if committed by a white person.”

“A full 75% of those executed in the South from 1910 to 1950,” it says, “were black, even though black people were less than a quarter of the South’s population.”

Forty years ago, Professor David Baldus documented the persistence of racial discrimination in death sentencing. He showed that people who murder a white victim are much more likely to be sentenced to death than those who murder a person of color.

“Nationally,” Equal Justice USA says, “almost half (47%) of all murder victims since the 1970s are black. But for cases ending in an execution, only 17% of murder victims are black.”

A 2020 study by Scott Phillips and Justin Marceau of the University of Denver found that race played a large part in determining which death-sentenced inmates are actually executed. The execution rate, they wrote, “is roughly 17 times greater in white victim cases than black victim cases. “

As the Reprieve report makes clear, race also shapes what happens in the execution chamber, only there it is the race of the defendant that is crucial. “The odds,” Reprive says, “of a botched execution increased by 220% for Black people compared to white people.”

While Reprieve offers no explanation for those disparities, what it found is consistent with what we know about the way Black bodies are regarded in this country.

In our schools, Black students often are the focus of suspicion when problems occur. Studies have found that “while about 15% of K-12 public school students are Black, they make up more than 30% of students who are suspended, expelled, or arrested.”

Such suspicion often shapes encounters between Black citizens and the police. A 2020 Pew Survey about race and policing in the United States states that “Black adults are about five times as likely as whites to say they’ve been unfairly stopped by police because of their race or ethnicity.”

In addition, “Nearly two-thirds of black adults (65%) say they’ve been in situations where people acted as if they were suspicious of them because of their race or ethnicity, while only a quarter of white adults say that’s happened to them.”

Finally, the NPR story about the Reprieve report cites Ruqaiijah Yearby, a professor of health law at The Ohio State University who said that “racist tropes…limit Black people from accessing equitable medical care, like the false notion that Black people have a higher tolerance for pain….Yearby cited research that showed that nationwide, Black cancer patients received lower doses of pain medication than cancer patients who were white.”

One reason for this is, as the Association of American Medical Colleges reports, that “Half of white medical trainees believe such myths as black people have thicker skin or less sensitive nerve endings than white people.”

In the end, we need to do more to understand why the executions of Black people are so frequently botched. But given the stereotypes about the Black body that pervade our society, it is not surprising that Black inmates receive different and worse treatment than White inmates in the execution chamber and that they pay a high price for our illusory and failed quest for a humane execution method.

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