In a column last month, I argued that over the last decade the lethal injection paradigm decomposed as new drugs and drug cocktails were adopted in death penalty states. As this happened, the number of problems encountered during executions multiplied. Of all the techniques used to put people to death in the United States since the start of the twentieth century, by 2010 lethal injection already had shown itself to be the most problematic. Since then, things have only gotten worse
As lethal injection mishaps multiplied, death penalty states did not sit idly by. Over the last decade, they responded in two ways.
My research collaborators and I found that while some states modified their execution procedures to make mishaps less likely, others introduced greater ambiguity and discretion into their procedures. These changes made it harder to identify or label any irregularity in the execution chamber as a departure from their protocols. Executioners gained greater flexibility to act when something went wrong, but, at the same time, the public became less well informed about deviations from standards meant to prevent cruelty and harm.
Among changes designed to prevent mishaps, some death penalty states added steps to parts of the lethal injection process where preventable mishaps commonly occur, such as in the injection of the sedative or anesthetic. They specified waiting periods between the injection of each drug in the lethal cocktail.
One particularly instructive case is Virginia, which had no mention of waiting periods in its October 2010 protocol. However, its July 2012 protocol called for a 30-second waiting period after the first drug’s injection. By February 2014, Virginia’s procedure called for a two-minute pause at the same juncture.
After 2010, some state’s procedures required that officials conduct “consciousness checks” on the condemned inmate with auditory and physical stimuli between injecting the first and second drugs. For example, in its December 2010 protocol, Pennsylvania instructed officials to close the curtain and call the inmate’s name in a loud voice before “assess[ing] consciousness of the inmate by tactical stimulation… touching the inmate’s shoulder and brushing the inmate’s eyelashes.” Nonetheless, some commentators insist that such procedures are inadequate.
A few states also added details about the placement of IVs. After the 2014 botched execution of Clayton Lockett, Oklahoma changed its protocol to require that officials record the number of IV insertion attempts, read the drug name out loud before its administration, leave the IV in the inmate after death for a medical examiner to see, and ensure the IV insertion remained visible.
Another example of procedural specificity occurs in protocols that identify decisional contingencies (if, then) in the lethal injection process.
From 2010 to 2020, some lethal injection protocols came to resemble decision trees with many branches, rather than a simple set of instructions. They specified what to do in case IV lines cannot be established, drugs do not cause unconsciousness or death, or an IV line fails.
However, other states have adapted to mishaps by making their protocols less specific or have introduced greater ambiguity in the language governing crucial stages of executions. For example, even as states have added more checks to ensure that IVs are working, they have allowed executioners to attempt to set lines for longer periods of time and in more places on the inmates’ bodies. They have done so by requiring that the execution team act in a “reasonable” manner, but without defining what counts as reasonable.
Another area where states have added ambiguity is execution length. No state procedures now specify a maximum time that should pass between injection and death. As a result, lethal injection’s critics cannot point to a specific regulation in order to hold states accountable for long and painful executions.
States have made it hard to say when mishaps occur by explicitly or implicitly authorizing officials to exercise discretion throughout the lethal injection process. Some now set extremely broad expectations about how long the IV insertion should take.
Moreover, many states now allow for a wider choice of sites for IV placement. In 2006, Missouri was the only death penalty state to allow for IV insertions anywhere, including through the painful femoral vein which runs from the upper thigh to the pelvic area. After 2010, eight other states provided long lists of ordered preferences for insertion sites. Protocols in some other states leave the decision about IV placement entirely up to the execution team.
Great discretion as to drug dosage is also now more common. Nineteen states’ protocols have allowed officials to inject additional doses as they see fit. Thirteen of those states have left the interval between rounds of injection completely to prison officials’ discretion.
Among states that do specify a waiting period, the times are inconsistent. Occasionally, permission for a second injection is accompanied by permission for a range of other actions; Oklahoma’s 2015 protocol allows the execution team to close the curtain, remove all of the witnesses, inject additional doses, and “determine how to proceed,” a generous grant of discretion that gives officials room to change the procedure on the fly.
Some states leave even the choice of drugs for any particular execution to the warden overseeing it. Fourteen death penalty states no longer specify a particular drug protocol, as they did before 2009. Instead, they allow officials to choose from a menu of drugs and drug combinations if needed. Idaho’s 2012 protocol reads, “which option is used is dependent on the availability of chemicals,” making explicit that these menus serve to enable executions to proceed in the face of drug shortages.
At the same time as they dealt with mishaps by tinkering with their protocols, death penalty states also have obscured the perception of mishaps by hiding executions, and information related to executions, from public view. According to the Death Penalty Information Center, of the 17 states that carried out executions between 2011 and 2018, 14 prevented witnesses from seeing at least one part of the execution, 15 prevented them from hearing the sounds of the execution, and 16 concealed the source of the drugs used.
Ambiguity and discretion provide executioners with a kind of blank check that brings lingering, fraught deaths into the fold of acceptable executions. Ambiguous language allows officials to elide details, and it means that executioners have wide latitude to modify execution procedures. They can do what they deem is necessary to kill the condemned, while acting within the authority granted by state protocols.
The way states have responded and adapted to the dreadful failures of lethal injection might be taken to suggest that it can be improved by better procedures and that they are committed to such improvement.
But, in truth, these responses and adaptations acknowledge that mistakes are endemic to lethal injection. Such mistakes are what sociologist Charles Perrow calls “normal accidents.” They are evidence of what Jody Madeira labels a “‘learning-by-doing’ process” in the development of lethal injection.
This learning-by-doing process turns execution by lethal injection into a process of cruel experimentation in which the inmates become human guinea pigs for the killing state.
Lethal injection has long proven itself anything but the painless form of death it once promised to be, and the reasons to end its use, indeed to end capital punishment in the United States, have only intensified.
Source: verdict.justia.com, Austin Sarat, April 12, 2021. Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde