In the world of capital punishment, timing is everything.
Execution dates are set. Death warrants are pegged to specific days and times. Detailed logs are kept noting what happens, and when it happens, in the holding cells where condemned inmates await their execution. Stays of execution may be delivered at the eleventh hour. Meticulous attention is paid to not only how, but when particular steps in the execution process are supposed to occur.
The obsessive focus on time is part of the ritualization of execution.
But identifying the time when an execution begins is also legally and constitutionally significant. It determines the reach of both the Eighth Amendment’s prohibition of cruel and unusual punishment and the constitutional prohibition of double jeopardy.
The importance of time in the execution process was very much in evidence in news reports and in a bizarre and chilling press event staged by the Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR) in the immediate aftermath of the May 11 execution of Clarence Dixon. Dixon was put to death for the 1978 sexual assault and murder of Arizona State University student Deana Bowdoin.
He maintained his innocence until the end.
During the ADCRR’s post-execution press event, which was conducted in front of a large, color photograph of Bowdoin, the first mention of time occurred at right the start. Frank Strada, the deputy Director of the ACRR, stepped to the podium and informed reporters that the condemned was “pronounced dead at 10:30 a.m.”
Following Strada, a media witness, Troy Hayden, went out of his way to make sure that his listeners understood not only what happened during the execution but when it happened. Unprompted, Hayden also told the assembled reporters that Dixon’s was the fourth execution he had witnessed.
He offered an almost minute-by-minute account of Dixon’s death.
“It took about 25 minutes to get all the IVs in,” Hayden said. The process took that long because the execution team had “trouble” finding a vein in which to insert the IVs .
“At 10:13,” Hayden continued, “the IVs were inserted and they were in. At 10:17 the death warrant was read by the warden….At 10:19 the drugs went in…At 10:22 his mouth fell open and he appeared to stop breathing. At 10:27 the doctor came in and checked him. At 10:28 the warden said the inmate was sedated. At 10:30 the warden said the execution is complete.”
Taylor Tasler, another media witness, started her account by noting that Dixon’s was the first execution she had witnessed. She said that the process was “pretty quick,” and “less than I expected.”
Tasler subsequently offered her own detailed timeline, which varied a bit from Hayden’s.
Among other things, she reported that at “9:38, the execution team started working on inserting an IV in Dixon’s left arm, but struggled to find a vein. He was wincing and shaking his head but never looked at the gallery.”
At 9:50 they started trying to insert an IV in Dixon’s groin. “The catheter insertion,” Taylor said, “took the most time. The medical team gave him a shot in the groin. Dixon was in visible pain when it happened.” It was “completed at 10:10.”
Both this first-time witness and the veteran of several executions gave startlingly unemotional accounts of what they saw when Dixon was put to death. In their view, his seemed to be just an “ordinary” execution.
Dixon’s execution attracted attention because it was the first time Arizona had put someone to death since the notoriously botched execution of Joseph Wood in 2014.
The Wood execution took more than two hours. During that time, Wood gasped for air more than 600 times. In its increasingly desperate effort to kill him, the execution team administered fifteen doses of midazolam, the first drug in what was then Arizona’s two-drug protocol.
Wood’s execution provided a reference point for Hayden who acknowledged while that it did not go according to plan, Dixon’s had proceeded “exactly as DOC planned for it to do.”
But Hayden’s own account, like Taylor’s, suggests something different.
It is clear that the placement of the IVs did not go according to plan. The execution team, Hayden recalled, first tried to put an IV in at the bend of the elbow on the left side. When that didn’t work, they tried accessing a vein in the bicep of his left arm.
Again they failed.
Next they tried his right arm until they secured an IV placement there. And, using a painful, “cutdown” procedure, they exposed a vein in Dixon’s groin and inserted another IV.
As Fordham University law professor Deborah Denno told Phoenix’s FoxNews10 after Dixon was put to death, “‘Executions should take seven to 10 minutes from the beginning of the IV insertion process until the moment the prisoner is declared dead.”
“The time it took to execute Dixon was,” in Denno’s view, “a sign of desperation (on the part of the execution team), and it’s a sign of an unqualified executioner.”
And the state’s current execution protocol also contradicts Hayden’s assessment that things went exactly as planned. It only allows the use of “peripheral IV catheters or a central femoral line as determined by the Director acting upon the recommendation of the IV Team Leader.”
It does not permit insertion of an IV in the groin or the use of the cutdown procedure that made Dixon suffer.
In our book, Lethal Injection and the False Promise of Humane Execution, my collaborators and I report that the kind of trouble securing an IV that occurred in Dixon’s case is not uncommon in lethal-injection executions. Since 2010, it has occurred in more than 8% of them.
Being poked and prodded as the people trying to end your life secure the lines through which the lethal drugs will flow was an extra-legal aspect of Dixon’s executions. And it is part of the grave indignity and inhumanity of execution by lethal injection.
The case of Romell Broom, executed in Ohio in 2009, offers another example of that indignity and inhumanity as well as of the importance of time in the execution process. Broom’s s execution was stopped when the execution team could not find a useable vein after 18 attempts.
Broom later filed suit, claiming that the prohibition of cruel and unusual punishment and of double jeopardy meant that, having failed once, the state could not try again to execute him.
The Ohio State Supreme Court disagreed.
It ruled that the insertion of IV lines was “merely a ‘preparatory’ step to the execution. Until the lethal drugs flow through the tubes…the state has not yet punished Broom….”
However, the court’s insistence on that distinction between the preparation for and the start of an execution severely and unduly narrows the reach of constitutional protections for those condemned to die. It affords the state unacceptably wide latitude to inflict excessive, or unnecessary, pain on those it seeks to execute or to act in a grossly negligent fashion.
Courts everywhere should reject the Ohio court’s approach and recognize that lethal injection executions begin when the execution team starts the work of inserting IV lines and intruding on the body of the condemned.
In Dixon’s case, this means that the repeated efforts to place the IVs were serious problems in the execution itself. It shows yet again that lethal injection is by no means a humane process.
Dixon’s execution is yet another reminder that, as Justice William O’Neill wrote in his dissent in the Broom case: “The term ‘lethal injection’ is merely a convenient euphemism used to aid in turning a blind eye to the real possibility that execution procedures can and do go wrong with predictable and horrendous results.”