A series of up-and-down news stories over the last few weeks show the complexity of the effort to end the death penalty in the United States. At the heart of this complexity is the simple fact that the road to abolition goes through the capitals of the remaining 28 jurisdictions which retain capital punishment.
The state-by-state battle means that a victory for abolition in one place does not ensure victory in another, nor is a defeat in one place a guarantor of the same outcome elsewhere. The journey to abolition, like other struggles for justice, is an incremental one, a series of two steps forward, one step back movements.
Developments this year in Alabama, South Carolina, Tennessee, and Ohio highlight this pattern. But first, let’s look at the national picture.
According to the Death Penalty Information Center’s execution database, there have been 18 executions this year. Five were carried out in the state of Texas, 5 in Florida, 4 in Missouri, 3 in Oklahoma, and 1 in Alabama. 7 more executions are scheduled between October 3 and the end of the year.
This suggests that 2023 will be a step back from the steady decline in executions that has occurred over the last several years. 2023’s execution total will surely surpass the 18 executions that occurred in 2022 and the 11 in 2021.
But, in one really positive development for abolitionists, Washington’s Gov. Jay Inslee signed a bill removing the death penalty from state law in April of this year, 5 years after the state supreme court declared it unconstitutional.
Of the 18 people put to death so far in 2023, 10 have been white, 6 Black, and 2 have been Latinx. In 14 of the executions, the victims of the crime for which the defendant was put to death were white.
All of 2023’s executions have been done by lethal injection. 9 of them used just 1 drug, pentobarbital. 4 others used a 3-drug protocol, with the midazolam as the 1st drug. The 5 Florida executions were done by a 3-drug protocol with etomidate as the 1st drug.
Other death penalty states continue to have difficulty obtaining lethal injection drugs and in carrying out lethal injection executions.
If we turn now to some specific examples, we see that Alabama is the most glaring instance of a place where the difficulties in carrying out lethal injections have been particularly acute. Last month, it announced its intention to try a different method in the forthcoming execution of Kenneth Smith.
It plans to employ nitrogen hypoxia, an execution method that is authorized in 2 other states (Missouri and Oklahoma) but has never actually been used. Law professor Bernard Harcourt rightly labels Alabama’s plan “a human experiment.”
Harcourt says about nitrogen hypoxia:
there are a lot of things that could go wrong. Should the mask not fit properly and oxygen seep in, the person may be left gasping in agony for air and suffer suffocation. This could result in severe brain damage rather than death. If the outflow is not properly regulated, the person will be asphyxiated by carbon dioxide. There may also be a danger of nitrogen toxicity to the people in the prison workplace or present for the executions.
As he puts it, “We do not even reserve this fate for dogs or cats.”
While Alabama wants to try out a new method of execution, last week officials in South Carolina said that they had “obtained a drug needed to carry out lethal injections and is ready to perform the state’s first execution in over 12 years.”
Corrections Director Bryan Stirling revealed that he “bought a supply of pentobarbital and the state would begin using the sedative as the only drug in its executions.”
State officials attributed their success in obtaining pentobarbital to their recently enacted Shield Statute. That law guarantees that the identity of the drug supplier for lethal injections will be kept secret.
In South Carolina, inmates are supposed to be put to death in the electric chair unless they choose lethal injection or the firing squad. But some of the people on death row filed suit claiming that dying by electrocution and being shot is a cruel and unusual punishment.
Now that the state has a supply of pentobarbital, it hopes to get on with executing the 34 people on its death row, even if the other methods are found to be unconstitutional.
Gov. Henry McMaster quickly applauded that possibility. “Justice,” McMaster said, “has been delayed for too long in South Carolina. This filing brings our state one step closer to being able to once again carry out the rule of law and bring grieving families and loved ones the closure they are rightfully owed.”
Like South Carolina, Tennessee has also recently secured a supply of pentobarbital. But unlike South Carolina, its Republican governor, Bill Lee, is in no hurry to get his state back into the execution business. Lee sees “no reason to speed up [the] process” of establishing new lethal injection protocols.
Last year, Gov. Lee commissioned an independent review of Tennessee’s lethal injection procedures. He did so after the state had to call off the execution of Oscar Smith because of a problem with its supply of lethal injection drugs.
Now, in a temporary victory for death penalty opponents, Lee says that developing a reliable lethal injection protocol is “a long process, but what I would add to that is we’re not going to take a single shortcut. We have to get it exactly right.”
He added that he believes that the state has a lot of work to do before it can finalize a protocol that is “legally appropriate” and “transparent and open.” Meantime, none of the 45 people on Tennessee’s death row faces an imminent execution date.
In his gradualist and cautious approach to restarting executions, Lee is following an example set by Ohio Governor Mike DeWitt who, three years ago, imposed an unofficial moratorium on executions in his state because of difficulties with the lethal injection protocol. All told, it has been 5 years since anyone was executed in Ohio.
Today, there seems to be considerable momentum behind abolition efforts in the state. Earlier this month, a bipartisan group of state representatives in Ohio reintroduced a bill that would abolish the death penalty in the state.
It parallels an abolition bill introduced in the Senate last March by Democratic and Republican Senators. As one of the Senate bills sponsors said “This isn’t a Republican or Democratic issue. No matter what a person’s reason for supporting this legislation, it’s critical for our own collective humanity.”
More than a third of Ohio’s state senators are now co-sponsors of the abolition bill, up from 9% who joined a similar effort a decade ago.
And according to recent surveys, this effort is supported by 59% of Ohioans who want to replace the state’s death penalty with life in prison without the possibility of parole.
Progress in Ohio, ambiguity about the situation in Tennessee, eagerness to execute in Alabama and South Carolina, together these facts indicate that so far 2023 has produced mixed results for death penalty abolitionists. All the while, what the Los Angeles Times brands “The uncivilized American institution that is the death penalty” remains in place.
“People are put to death, or not,” the newspaper argues, “based on the randomness of varying state laws and customs and the conscience of individual jurors and judges. And the courage, tardy and incomplete though it may be, of elected leaders.”
This year’s developments are a reminder, as the political theorist Michael Walzer says, that the struggle for justice is often “very slow.” Along the way we must keep moving forward even as we learn from what Walzer calls the “gradual pedagogy of successes and failures.”
Source:
verdict.justia.com, Austin Sarat, September 25, 2023 . Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
