On three occasions in the past four months, Alabama’s department of corrections has bungled its lethal injections procedure.
At 7.57pm on 17 November, prison guards entered the “death cell” at Holman correctional facility in Atmore, south Alabama, where Kenneth Smith was awaiting execution by lethal injection for the 1988 murder-for-hire of a preacher’s wife.
The guards put Smith in handcuffs and leg irons, then led him to the execution chamber and strapped him tightly to the gurney. As he lay there, he prepared himself for imminent death.
He looked up at the fluorescent lights and was struck by how they formed the shape of a cross. Over 33 years on death row he had found faith, and he sang quietly to himself, “I’m not alone.”
Two minutes before Smith was taken into the death chamber, the 11th circuit court of appeals had put a stay on his execution. The judges found reasonable grounds to suspect that the team in charge of setting up the intravenous lines for the lethal injections would have “extreme difficulty” in accessing the prisoner’s veins and that as a result he would be inflicted with “superadded pain”.
Despite a clear order to stop from one of the country’s highest courts, the execution team pressed on. According to Smith’s lawyers, who have relayed his account of events in court documents, “he believed that he would die soon and that there was nothing more that could be done”.
At 10pm, with the appeal court stay still in place, a three-person IV team, their identities obscured behind green, blue and red scrubs, respectively, entered the chamber, ready to inject the drugs that would kill Smith – midazolam hydrochloride, rocuronium bromide and potassium chloride.
Blue Scrubs tied a tourniquet around Smith’s upper arm and then stuck a needle into him. When Smith protested that he was stabbing into his muscle, Blue Scrubs replied: “No I’m not.”
After that attempt failed, Green Scrubs began slapping Smith’s right hand, then piercing it in several places. “With each jab, Mr Smith could feel the needle going in and out and moving around under his skin, causing him great pain,” the lawyers recorded.
When no workable veins could be found, Blue Scrubs instructed the prison guards to flip the gurney backward so that the prisoner’s feet pointed towards the ceiling while his head bowed to the ground. Smith now found himself, curiously for a man of religion, in an inverse crucifixion.
Then the IV team left the chamber, leaving him in that position for several minutes. On their return, they righted the gurney.
Red Scrubs, swathed now in face mask and shield to protect himself from splattering blood, produced a large-gauge needle. He began piercing it under Smith’s collarbone in search of a central line straight into his subclavian artery.
After five or six jabs, still with no success, a deputy warden moved Smith’s head to the side to provide a clearer run for the needle.
By now the condemned prisoner was in excruciating pain, according to his lawyers. When Smith protested, the deputy warden clasping his head reportedly told him: “Kenny, this is for your own good.”
What is it like to survive an execution attempt in the US? Normally, there’s no one to tell the tale.
But these are not normal times, especially in Alabama.
On three occasions in the past four months, Alabama’s department of corrections has bungled its lethal injections procedure. In each case, IV teams struggled for hours to find a vein through which to pour the lethal cocktail set out in the state’s execution protocols.
Two of those times, after hours of prodding and jabbing, piercing and stabbing, they were forced to admit defeat. The prisoners did – almost unthinkably – live to tell the tale.
A recent series of disturbing death chamber encounters, in Alabama and other states, following a troubling history, has put the spotlight back on lethal injections as the main method of capital punishment in the US. The confluence of stories has been so alarming that some observers have begun to wonder whether the narrative that has stood for more than half a century that lethal injections are a medically informed, dignified way for states to kill people is finally unraveling.
The procedure was first proposed by a medical examiner in Oklahoma in 1977 as a more civilized, painless alternative to the electric chair and firing squad. But from the start, it has been dogged by problems ranging from controversies surrounding the pharmaceutical drugs used in the cocktail to prolonged and potentially agonising deaths.
"The recent spate of disastrous lethal injection executions have shown … prisoners often spend their final hours in agonising pain and distress." — Maya Foa
Not only have death penalty states struggled to acquire execution drugs under a global boycott by drug companies, but they have also found it hard to contract skilled medical practitioners to administer the IV lines. Both the American Medical Association and the American Board of Anesthesiology prohibit their members participating in executions.
As a way around these hurdles, many states have wrapped themselves in a veil of secrecy to avoid public scrutiny. In Alabama, the members of the execution team are kept strictly anonymous.
The establishing of IV lines is a process that occurs, literally, behind a closed curtain in the absence of media and other public witnesses. Under Alabama’s execution protocols the curtain over the window of the official viewing room is to be opened only after the IV team has completed its task.
As a result, the only people who know precisely what happened to Smith inside the death chamber are the prisoner himself and his unnamed executioners.
“The recent spate of disastrous lethal injection executions have shown that whatever the drug, whatever the protocol, condemned prisoners often spend their final hours in agonising pain and distress,” said Maya Foa, director of the human rights group Reprieve US. “With each gruesome scene in the death chamber, we are witnessing the consequences of persisting with a broken method of execution, in real time.”
In Smith’s case, the IV team’s labours failed. He was still in the chamber when the US supreme court gave its go-ahead for the execution, but shortly before midnight when the death warrant would expire the procedure was called off.
The prisoner, still alive but riddled with holes and profoundly traumatized, was returned to his cell. He had been strapped to the gurney for four hours.
Smith is one of only two people alive today who have survived an execution procedure in the US. His fellow member of this exceptionally small and undesirable club, Alan Miller, was subjected to an attempted execution by Alabama in September.
Miller has been on death row for 22 years for shootings that killed three co-workers in 1999. At 10pm on 22 September, he was taken into the death chamber at Holman and put through what his lawyers claim was physical and mental torture.
Miller’s attorneys described what happened in a court filing. He was repeatedly punctured over 90 minutes as he lay on the gurney.
Miller’s legal team had flagged up in litigation that doctors had struggled to gain access to his veins throughout his adult life. In fact, the prisoner was so worried that lethal injection would go horribly wrong that he opted – as was his right under Alabama law – to die by lethal gas, via nitrogen hypoxia.
Alabama ignored the request.
Miller’s IV team – Green Scrubs and Aqua Scrubs this time – proceeded to make what his lawyers described as a “tour” of the prisoner’s body. Left arm, right hand, left hand, inner left arm, right foot, left foot – each body part was pierced multiple times in an increasingly desperate, and ultimately futile, search for an accessible vein, sometimes with them both probing different parts with needles simultaneously.
Like Smith, Miller was also swung vertically, suspended in the crucifix position, albeit with his head up, for an estimated 20 minutes. By the time they lowered him, blood was leaking from his wounds.
Shortly before midnight, he was told: “Your execution has been postponed.” He spent the next several days curled up in the fetal position in his cell.
In a rare personal account, Romell Broom self-published a book, Survivor on Death Row, in which he described being poked for two hours by Ohio executioners in September 2009 before the procedure was aborted.
According to Broom, who was convicted of raping and murdering a child in 1984, he was probed more than 100 times all over his body by officials unsuccessfully seeking a vein.
"What Alabama did to Joe Nathan James, they then did to Alan Miller and Kenny Smith – and guess what, it failed both times." — Joel Zivot
After the failed execution attempt, the authorities kept at him, setting a new death warrant for June 2020.
When Broom objected that it would be unconstitutional to try and execute him twice, the state argued that an execution only begins once the lethal drugs are in your bloodstream. Broom said of this catch-22: “Once the chemicals enter your system, you’re as good as dead, so you would have no right of appeal.”
The pandemic forced a delay in Broom’s execution, but then he died in prison of complications from coronavirus in December 2020.
In recent months problems with IV lines have struck several death penalty states. It took Texas almost two hours to kill the convicted murderer Stephen Barbee on 16 November – the day before Smith’s ordeal in Alabama. Barbee was disabled and could not straighten his arms.
On the same day, Arizona struggled to insert IVs into the double murderer Murray Hooper and officials had to cut into his femoral artery. Hooper lifted his head off the gurney, looked through the glass at public witnesses and said: “Can you believe this?”
Back in Alabama Joe Nathan James was executed in July for the 1994 murder of his ex-girlfriend.
The authorities took almost four hours to kill James – the longest botched lethal injection in US history. Yet state officials insisted it was “nothing out of the ordinary”.
After that execution Joel Zivot, an expert on lethal injections, at Atlanta’s Emory University hospital, and Elizabeth Bruenig, a reporter from the Atlantic, were invited to attend a private autopsy of James. Zivot told the Guardian he saw multiple punctures on both James’s arms.
There was bruising around the wounds indicating James had been alive at the time. There was also a deep incision in a forearm, implying the IV team had attempted a “cutdown procedure” – a maneuver seeking a vein that Zivot said would rarely be used in a medical setting and would almost certainly have caused extreme pain.
Zivot linked Alabama’s repeated recent blunders to secrecy. “When things go wrong in industries that require safety – nuclear power, say, or the airlines – detailed reviews are conducted in full public view. But what Alabama did to Joe Nathan James, they then did to Alan Miller and Kenny Smith – and guess what, it failed both times.”
Another important factor, Zivot believes, is the composition and skill level of the IV team, noting that even Alabama’s heavily redacted execution protocols are confused about the role of trained medical professionals.
The first page of the protocols says that administering lethal injections “shall not constitute the practice of medicine, nursing, or pharmacy”. Yet the next page says that the condemned person “will see a physician [REDACTED] for an assessment of his vein structure”.
“So what is it then?” Zivot said. “Is lethal injection a medical act by physicians or is it not a medical act? The whole document is fraught with contradictions.”
Zivot is convinced from having inspected the cutdown incision that a physician was involved in James’s execution, as such a surgical step would probably be beyond the comfort zone of an EMT or nurse practitioner.
But “just because you’re a physician, doesn’t mean you can start an IV”, Zivot said. “Besides, what doctors learn in medical training does not necessarily translate to the death chamber – they are working in a totally different environment without the critical trust that exists between doctor and patient.”
Bernard Harcourt has also seen the results of a botched procedure in Alabama up close. A Columbia University professor and death penalty lawyer, Harcourt represented Doyle Hamm, who on 22 February 2018 became the first Alabama prisoner to survive attempted execution.
Hamm was terminally ill with lymphoma at the time, and died of his illness in prison three years later. The fact that he had terminal cancer did not deter the state from trying to kill him. Nor did several clear warnings made by Hamm’s lawyers in litigation that his medical condition, combined with years of drug use, would make it extremely difficult to locate a vein.
Hamm, convicted in the slaying of a motel clerk in 1987, died of natural causes on death row in November 2021.
Harcourt went to see Doyle in prison the day after he had been subjected to a two-hour aborted execution during which he was punctured at least 11 times and his bladder pierced. As Doyle approached, Harcourt could hear his chains rattling and said it “was the slowest jangling noise I had heard in 30 years of prison visits”.
When he appeared, Harcourt said Doyle “looked like a ghost, a shadow of himself. He shuffled over, barely able to walk. He had been in such pain, he told me, that he had been praying they would get it over with and that he would die.”
Amid rising public concern about the string of events in Alabama, the state’s Republican governor, Kay Ivey, last month ordered a temporary halt to executions to allow for an official review.. But in announcing it, she said: “I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at corrections or anyone in law enforcement. Legal tactics and criminals hijacking the system are at play here.”
That makes Zivot see red. “It’s like a joke, you know, except it’s not funny. I’ll be clear, terrible things happened here to the original victims, people were murdered. How we treat and punish prisoners is the measure of our civil society, it’s the test. Shame on us, and shame on them, for causing this to happen.”
Source: The Guardian, Ed Pilkington, December 28, 2022
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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