Skip to main content

USA | It Is Time to End the Lethal Injection Mess

On June 23, amidst all furor over its gun rights and abortion decisions, the Supreme Court handed down a little noticed death penalty decision, Nance v Ward. In that case, a five-Justice majority ruled that death row inmates could file suits using 42 U.S.C. Section 1983, a federal law that authorizes citizens to sue in federal court for the deprivation of rights, to bring suit alleging that an execution method violated the Eighth Amendment.

Michael Nance, who was sentenced to death in 2002, will now be able to proceed with his suit contesting Georgia’s plan to execute him by lethal injection.

Nance suffers from medical conditions that have compromised his veins. To use lethal injection, the only execution method now authorized by state law, prison authorities would have to “cut his neck” to establish an intravenous execution line. He also claims that his long-time use of a drug for back pain would diminish the effect of the sedative used in Georgia’s drug cocktail. Nance alleges that under such conditions lethal injection would be “torturous.”

He asks to be executed by a firing squad.

Nance’s objection to lethal injection might seem idiosyncratic and limited to his individual circumstances. But it is just the latest sign of lethal injection’s crippling problems.

As my collaborators and I point out in our new book Lethal Injection and the False Promise of Humane Execution, what was once thought to be this country’s most humane execution method has turned out to be its most problematic. As a result, death row inmates across the country are challenging the constitutionality of lethal injection and, where they have an option, choosing to die by other methods like the electric chair or the firing squad.

That litigation has helped surface lethal injection’s ongoing and irreparable problems.

As Elizabeth Bruenig, a staff writer at The Atlantic, notes, “In some states, evidence that lethal injection is inhumane has already led to de facto shutdowns of execution chambers—California, for instance, hasn’t attempted an execution since a sprawling 2006 method-of-execution lawsuit unearthed disturbing facts about the state’s protocol.”

It is time to for death penalty states to follow California’s example, end execution by lethal injection, and bring the machinery of death to a halt.

Lethal injection’s problems are nothing new. They have been present from its initial authorization in Oklahoma in 1977 and its first use in Texas’s 1982 execution of Charles Brooks.

Its development was anything but scientific, more the product of hunch and seat-of-the-pants judgments than careful study. The original sponsors of lethal injection in Oklahoma weren’t sure how to draft the authorizing legislation and describe how it would kill. They needed advice—what drugs should be used? And how should they be administered?

The sponsors went from one medical practitioner to another seeking help imagining what lethal injections should look like in the United States. They were repeatedly rebuked.

Ultimately, A. Jay Chapman, the state’s chief medical examiner, agreed to work with them. He believed that lethal injection would be less violent and gruesome than the electric chair. However, Chapman conceded that he was “an expert in dead bodies but not an expert in getting them that way.”

Undaunted by his lack of expertise, Chapman offered a blueprint for Oklahoma’s lethal injection law. When asked why he selected a three-drug combination of an anesthetic, a paralytic agent, and a drug to stop the heart, Chapman admitted that “[he] didn’t do any research” and “just knew from having been placed under anesthesia [himself] what [the execution] needed.”

Although Chapman was neither an anesthesiologist nor a toxicologist, the Oklahoma statute copied his proposal almost word-for-word and helped make it the model for almost all lethal injection statutes in the states that reinstated the death penalty.

From its introduction until 2009, every execution by lethal injection was carried using Chapman’s 3-drug protocol. Nonetheless, during that same period, more lethal injections were botched than had been true of any other method of execution in American history.

Lethal injection’s problems accelerated after 2009 when pharmaceutical companies refused to supply the drugs needed for the 3-drug cocktail.

Increasingly desperate to find ways to obtain drugs necessary for their executions, death penalty states began to experiment with new drugs and untried drug combinations.

By the end of 2020, they had used at least ten distinct drug protocols in their executions. Some used barbiturate combinations, others used barbiturate overdoses, and still others used sedative combinations. Some of those protocols were used multiple times, while some were used just once.

Even so, the traditional 3-drug protocol was all but forgotten. After a decade of experimentation, all that remained of the original lethal injection paradigm is a needle in the inmate’s arm and a declaration of death.

In my research on lethal injection, I found that between 2010 and 2020, 8.4 percent of lethal injection executions were botched. In sedative combination executions, the rate skyrocketed to 22.4 %. Some of those gruesome spectacles, like Oklahoma’s 2014 execution of Clayton Lockett and Arizona’s execution of Joseph Wood, made national headlines.

Other research carried out by National Public Radio found signs of pulmonary edema—fluid filling the lungs—in 84 % of the 216 post-lethal injection autopsies it reviewed. Some autopsies reveal that inmates’ lungs filled while they continued to breathe, which would cause them to feel as if they were drowning and suffocating.

Given lethal injection’s record, it is no wonder that Michael Nance, and other death row inmates, want to die by some other means.

Summarizing lethal injection’s history in a 2014 opinion, former Ninth Circuit Court of Appeals Judge Alex Kozinski got it right when he said of execution by lethal injection that “the enterprise is flawed.”

As Kozinski explained, “Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful. … But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

Ending the lethal injection mass and acknowledging the “horrendous brutality” of any method of execution should foretell the end of the death penalty itself.

Source: verdict.justia.com, Austin Sarat, June 27, 2022. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.






🚩 | Report an error, an omission, a typo; suggest a story or a new angle to an existing story; submit a piece, a comment; recommend a resource; contact the webmaster, contact us: deathpenaltynews@gmail.com.


Opposed to Capital Punishment? Help us keep this blog up and running! DONATE!



"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

Most viewed (Last 7 days)

Kansas AG urges governor to deny clemency to 8 sentenced to death

TOPEKA — Attorney General Kris Kobach on Tuesday urged the governor to deny clemency to Kansas inmates who have been sentenced to death. Eight of nine people sentenced to death in Kansas formally filed clemency requests in May, according to a press release from the Attorney General’s Office. Kobach urged Gov. Laura Kelly to reject them.

Alabama | Judge bars nitrogen gas execution, says method is unconstitutionally cruel

MONTGOMERY, Ala. -- A federal judge on Tuesday permanently blocked Alabama from executing an inmate with nitrogen gas after declaring it violates the ban on cruel and unusual punishment. U.S. District Judge Emily Marks issued the ruling hours after an appeals court reversed her initial finding that the method was constitutional. Marks permanently enjoined the state from executing Jeffrey Lee, 49, by nitrogen gas. He was scheduled to be executed Thursday. The decision, for now, blocks the use of the controversial new execution method that the state has championed since 2024, but the issue will likely end up before the U.S. Supreme Court.

Texas | Death Row Inmate Gets Resentenced to Life

Harris County district judge recommends compassionate release for Clarence Jordan A 1977 convenience store robbery that resulted in a clerk’s death landed Clarence Jordan on Texas Death Row, where he remained for decades even though he was declared incompetent for execution. On Monday, a judge recommended that the disabled man be released.  Harris County District Court Judge Katherine Thomas resentenced Jordan to life with the possibility of parole and suggested that he be considered for the Texas Department of Criminal Justice’s Medically Recommended Intensive Supervision program, also known as compassionate release.

US | Army lays groundwork for death row executions if Trump gives approval

The Army is preparing to carry out the executions of the military's four death-row inmates if ordered to do so by the president, according to an internal planning document reviewed by ABC News. If carried out, it would mark the first time the military executed convicted American inmates in more than a half-century The plan, dubbed "Operation Resolute Justice" and issued internally in February, directs Army officials to coordinate with the Federal Bureau of Prisons to transfer condemned prisoners from the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, to the federal execution facility in Terre Haute, Indiana, where the Justice Department carried out a series of non-military federal executions during President Donald Trump's first term.

Alabama | Judicial Decision About Nitrogen Hypoxia Renders the Constitutional Prohibition of Cruel Punishment Meaningless

On June 11, the state of Alabama plans to execute Jeffrey Lee with nitrogen hypoxia . He will be the ninth person put to death by this method since its first use in 2024. Lee contends that nitrogen hypoxia will cause him great suffering. On May 28, Federal District Judge Emily Marks agreed with him but said his execution could proceed nonetheless. Hers is a remarkable and shockingly candid decision. It made history, coming after the first trial in the country on the constitutionality of nitrogen hypoxia. To her credit, Judge Marks offered an unusually detailed picture of the pain imposed by capital punishment.

Idaho will soon turn to firing squad executions. Police will pull the triggers

Trained members of Idaho law enforcement with demonstrated firearms proficiency are expected to fill slots for carrying out the death penalty by firing squad as the state prison system transitions to the controversial execution method next month.  Six volunteers certified for no less than three years apiece through Peace Officer Standards and Training, or POST, will be recruited to ensure the Idaho Department of Correction is ready to comply with a state law that prioritizes shooting prisoners to death over lethal injection starting July 1.  No one on the team may have faced disciplinary action over firearms, use of force, or related conduct over the prior year, according to new execution protocols the prison system released this week. 

Texas | Tanner Horner now incarcerated at the Polunsky Unit

Convicted child killer Tanner Horner has now taken up residence in one of the most brutal death row prisons after being sentenced to die by a Texas jury last month. Horner is incarcerated at the Polunsky Unit, an infamously restrictive prison outside Houston where the state's death row inmates are housed in an all-solitary confinement wing and spend at least 22 hours a day in their 60-square-foot cells. The former FedEx deliveryman, 34, was booked at the notorious prison on May 5 within hours of being sentenced for the gruesome murder of Athena Strand, 7, whom he admitted strangling while delivering a Christmas gift to her home in November 2022.

20 Minutes to Death: Witness to the Last Execution in France

The following document is a firsthand account of the final moments of Hamida Djandoubi, a convicted murderer executed by guillotine at Marseille’s Baumettes Prison on September 10, 1977. The record—dated September 9—was written by Monique Mabelly, a judge appointed by the state to witness the proceedings. Djandoubi’s execution would ultimately be the last carried out in France before capital punishment was abolished in 1981. At the time, President Valéry Giscard d'Estaing—who had publicly voiced his "deep aversion to the death penalty" prior to his election—rejected Djandoubi’s appeal for clemency. Choosing to let "justice take its course," the President allowed the execution to proceed, just as he had in two previous cases during his term:   Christian Ranucci , executed on July 28, 1976 and Jérôme Carrein , executed on June 23, 1977. Hamida Djandoubi , a Tunisian national, was sentenced to death for killing his former lover, Elisabeth Bousquet. He was execu...

SCOTUS: Alabama can’t execute Jeffery Lee by nitrogen; Thursday execution called off

After a week of legal volleyball, Alabama death row inmate Jeffery Lee’s execution—scheduled for Thursday evening—was called off after federal courts called the state’s nitrogen gas execution method “likely unconstitutional.” The state took the fight to the U.S. Supreme Court, hoping Lee could still be put to death tonight.  In an order issued at 8:10 p.m., the U.S. Supreme Court ordered that it would not lift a ban on Alabama executing Lee via nitrogen . In a short court order, the justices denied Alabama’s motion to go ahead with the execution.  Associate Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted the appeal and let the execution proceed, according to the order. 

New Mississippi billboard warns criminals: ‘Firing squad is legal’

DESOTO COUNTY, Miss. (WREG) — A billboard standing on Interstate 55 southbound as you cross the Tennessee state line and enter Mississippi from Memphis is sending a grim message to those coming into the state. DeSoto County District Attorney Matthew Barton recently announced the new billboard campaign, which features the sign reading, “WELCOME TO MISSISSIPPI. WHERE THE FIRING SQUAD IS LEGAL. THINK TWICE.” It references Mississippi’s law permitting execution by firing squad under certain circumstances for inmates sentenced to death. Barton says this campaign is aimed at deterring violent crime and sends a direct message to criminals entering Mississippi.