Long considered the most humane form of the death penalty, the truth is that lethal injection is still a problematic procedure, despite attempts to improve it, though things may be changing.
States have consistently adjusted their capital punishment methods to present allegedly more humane procedures, hiding the death penalty’s inherent problems. Lethal injection is no different.
THROUGHOUT United States history, when states encountered problems with their methods of execution, they first attempted to address them by tinkering with those methods. When tinkering failed, they adopted allegedly more humane execution methods. When they ran into difficulty with the new methods, state actors scrambled to hide the death penalty’s problems from public view. And they have followed this same playbook in the lethal injection era.
Recent tweaks to lethal injection haven’t made the process more humane; in fact, the procedure is less reliable than before.
During the past decade, states tweaked lethal injection procedures and implemented secrecy measures. Our glimpse into the death chamber—aided by newspaper articles, independent investigations, and court documents—reveals that such changes have done little to make lethal injection more humane. As Deborah Denno puts it: “It is questionable whether any of the [changes to lethal injection procedures]... can fix [them] with a sufficient degree of reliability.” In fact, lethal injection became more error-prone as states switched from barbiturate combinations to other types of drug protocols. As the original lethal injection paradigm decomposed, the problems with this method of execution deepened.
As a result of the problems, death penalty states authorized older execution methods as fallback options.
DEATH PENALTY states responded to lethal injection’s problems by resurrecting older methods of execution as backups in case lethal injection becomes “unavailable” in the future. Between 2014 and 2015, six states authorized the firing squad, electrocution, or lethal gas as backup methods of execution, and the federal government joined them in 2020. Today, eight states (Alabama, Arizona, Florida, Kentucky, Mississippi, Oklahoma, South Carolina, and Tennessee) include the electric chair among their available methods of execution. Seven states (Alabama, Arizona, California, Mississippi, Missouri, Oklahoma, and Wyoming) allow for the use of the gas chamber. One, New Hampshire, permits hanging. And four states (Mississippi, Oklahoma, South Carolina and Utah) authorize the firing squad as an alternative to lethal injection.
An Ohio Governor in 2020 declared an “unofficial moratorium” on the state’s lethal injection after a federal judge found that prisoners would likely endure “severe pain and needless suffering.” Other states may follow suit. Despite Ohio’s many changes to the procedure over the years, serious problems remain.
Some politicians, including Republicans, have begun to take stock of the growing evidence of lethal injection’s inhumanity, and the inability of states to “fix” their way out of it. For example, on December 8, 2020 Ohio’s Republican Governor Mike Dewine announced an “unofficial moratorium” on his state’s death penalty. The moratorium came almost three years after a federal judge compared Ohio’s lethal injection procedure to “waterboarding, suffocation, and exposure to chemical fire.” The judge found that lethal injection “will almost certainly subject prisoners to severe pain and needless suffering.” Dewine responded that “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.” Dewine’s comments underscore the fact that Ohio’s efforts to keep lethal injection alive over the last twenty years—including switching drug cocktails, adding checks to its procedure, and obscuring mishaps in its death chamber—have not solved its problems. Based on the abundance of evidence about the problems and mishaps associated with lethal injection, it is possible Dewine’s actions will in the future become part of a trend away from the use of lethal injection.
Clearly, lethal injection is not a humane form of the death penalty. Often left out of public discourse on the topic, instead activists decry the justice system’s significant faults. We also need to think about the manner of execution, not only the justice system.
LETHAL INJECTION'S persistent problems remind us of the futility of trying painlessly and predictability killing humans. As this book [shows], this technology, no matter how advanced it once seemed to be, could not make execution humane. Yet neither abolitionists nor judges have made that fact central to the national conversation about capital punishment. Instead they have devoted most of their attention to the horrendous miscarriages of justice that result in conviction of innocent people for capital crimes they did not commit and to the continuing pattern of arbitrariness and discrimination in death sentencing. It is right that they would attend to those rights violations. But solicitude for the rights of those caught up in this nation’s death penalty system should not end at the death house door. The story of lethal injection reminds us that we also need to think about the kind of death that we deliver to those we execute and the fate of the guilty whom the state kills.
Examining lethal injection, it’s clear we must change the conversation about it. Once it was thought that new death penalty methods meant progress, but the evidence proves this supposition wrong, and the procedure has more problems than ever.
Doing so should lead us to revise existing narratives about America’s methods of execution. Some have claimed that the evolution of methods of execution in the United States is a story of progress. To them, the adoption of each new execution method marked the abandonment of more barbaric and gruesome methods. But this argument is not supported by the evidence. Indeed, the period from 2010 to 2020 was less a period of progress than of deterioration and decline. New drugs and drug combinations and new procedures may have given the increasingly jerry-rigged lethal injection process a veneer of legitimacy. But none of these recent changes have resolved its fate or repaired its problems.
Was lethal injection set up to fail, with its resemblance to a medical procedure? It can never live up to such standards, since the procedure is meant to kill, not to heal.
Looking at its history suggests that lethal injection may have been set up to fail. With its use of IVs, injectable drugs, and EKGs, it resembles a medical procedure. Yet, no execution method can ever live up to medical standards. While doctors are guided by an oath to “do no harm,” the executioner’s sole goal is to kill.
NOTHING CAN be done to redeem the promise that lethal injection would be this country’s most humane execution method. Nothing can be done to rescue it from being the least reliable and most problematic mechanism of state killing. Supreme Court Justice Sonya Sotomayor got it right when she observed, “What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet.” Ending that “cruel experiment” and recognizing the false promise of humane execution should foretell the end of the death penalty itself.
Austin Sarat
Excerpted from the book with the author's permission.
Austin Sarat, an American political scientist, is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
Lethal Injection and the False Promise of Humane Execution : Book Launch Event
Sunday, August 21st 2022 | 5:30PM EDT
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