USA | “Hear No Evil, See No Evil,” State Responses to Botched Executions and the Danger of Indifference
Take the case of John Marion Grant, put to death by the state of Oklahoma in October of last year. This week an autopsy report was released that revealed just how badly botched his execution was and just how absurd was Oklahoma’s head-in-the-sand response to it.
Grant’s execution made headlines when witnesses provided disturbing eyewitness accounts of his suffering. Dan Snyder, a local television reporter and one of the five media members present, offered a minute-by-minute account of what happened.
Snyder reported that shortly after the start of the midazolam, the first drug in Oklahoma’s drug cocktail, things started going wrong. Midazolam is a sedative that has been implicated in several botched executions but whose use in executions has been approved by the United States Supreme Court.
According to Snyder, almost as soon as the drug reached Grant’s body, “Grant began convulsing, so much so that his entire upper back repeatedly lifted off the gurney.” Snyder continued, “As the convulsions continued, Grant then began to vomit. Multiple times over the course of the next few minutes medical staff entered the death chamber to wipe away and remove vomit from the still-breathing Grant.”
A few minutes later as the other drugs began to flow, Grant’s convulsions subsided and he died.
Snyder’s account was neither idiosyncratic nor exaggerated. It was corroborated by other witnesses.
But not by the state, which chose to turn a blind eye to the suffering it inflicted on Grant.
In the immediate aftermath of the execution, Oklahoma’s Department of Corrections spokesperson Justin Wolff said that “Inmate Grant’s execution was carried out in accordance with Oklahoma Department of Corrections’ protocols and without complication.”
Snyder’s retort was telling, “As a witness to the execution who was in the room, I’ll say this: repeated convulsions and extensive vomiting for nearly 15 minutes would not seem to be ‘without complication.’”
The autopsy report indicated that Grant’s lungs were “heavy… (combined lung weight, 1390 grams) with edema, congestion, and mild emphysematous changes.” Pulmonary edema means that as his lungs filled with fluid Grant would have experienced suffocation or felt as if he were drowning. A 2020 National Public Radio report said that pulmonary edema is a common occurrence in lethal injections. It quoted an Ohio judge who compared the experience to “the torture tactic known as waterboarding.”
And, if that were not enough, Grant’s autopsy detailed intramuscular hemorrhaging and said that Grant aspirated on his vomit during his repeated convulsions.
The response from the Department of Corrections. Silence.
To offer another example of the “hear no evil, see no evil” posture that typifies state responses following a botched execution, consider Alabama’s 2016 execution of Ronald Smith. Smith had unsuccessfully challenged Alabama’s execution protocol, claiming that midazolam, the first drug in the three-drug protocol that would be administered to him, would sedate him without rendering him insensate to the burning feeling induced by the following two drugs.
His execution lasted for 34 minutes, and for 13 minutes after the first drug was injected, Smith struggled for breath, heaved his chest, coughed, and clenched his fist. Even after his second consciousness check, in which officials declared him unconscious, he moved his hands and arm. His left eye appeared to be slightly open at points throughout the half-hour execution.
Following the execution, “Alabama Prison Commissioner Jeff Dunn said that the execution went as outlined in the prison system’s execution protocol. ‘We followed our protocol,’ he said…‘The protocol has been approved by the medical community, prison officials and the courts…’”
In another of Alabama’s botched executions, Doyle Hamm’s 2018 execution, execution team members tried for hours to find a useable vein, repeatedly jabbing him in different parts of his body. Eventually Hamm’s execution was stopped. Media witnesses called what they had seen “torture.”
Commissioner Dunn’s countered, “I wouldn’t necessarily characterize what we had tonight as a problem….”
In one sense it is not surprising that officials like Wolff or Dunn would deny that anything went wrong during executions over which they, or the agency for which they work, were responsible. Ever worried about litigation or getting caught in a pro-death penalty backlash, they dodge and obfuscate.
It’s a “they said, they said” world in which even simple facts don’t seem simple.
But there is more here than just individual officials trying to put the best face on lethal injection’s cruelty.
Many death penalty states have developed a conscious, coordinated strategy to cover their tracks and provide the necessary wiggle room to achieve what John Dean, of Watergate fame, once labeled “plausible deniability.”
This strategy requires intentionally setting up the conditions that allow plausibly avoiding responsibility for one’s future actions. In the execution business, the strategy involves designing protocols that are broad and ambiguous. Such breadth and ambiguity provide executioners with a kind of blank check that brings lingering, fraught deaths into the fold of legally acceptable executions.
Almost anything that happens during an execution can now be said to fit within the terms of state protocols.
Some death penalty states no longer even bother to specify a particular drug cocktail, as they all had done before 2009. Instead, they allow officials to choose from a menu of drugs and drug combinations.
Rather than preventing unnecessary pain and suffering for people like Grant, Smith, or Hamm, protocols enable officials to disregard a condemned inmate’s evident distress. And they enable officials to use empty, bureaucratic language to cover their tracks and avoid confronting the grim reality of what injecting a frequently slip-shod cocktail of lethal drugs does to the human body.
You can’t fix what you refuse to see and you cannot acknowledge that it is just plain unfixable.
And state indifference only compounds the horror of what the state does when it puts people to death.
As Nobel Peace Prize winner Elie Wiesel once warned, “[T]he peril threatening human kind today is indifference, even more than hatred…. So what we must do—I mean your peers and mine—is fight indifference.”
Source: verdict.justia.com, Austin Sarat, February 18, 2022. Austin Sarat is the 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