Tuesday, March 14, 2017

Arkansas's Reckless Rush to the Execution Chamber

by Justin F. Marceau & Alan K. Chen

Last week, Arkansas Governor Asa Hutchinson announced an unprecedented plan to execute eight death row prisoners by lethal injection in a ten day period in April.  As lawyers for the estate of Clayton Lockett, the Oklahoma inmate who in 2014 suffered perhaps the worst, botched execution in recent history, we are acutely aware of the many problems with lethal injection.  Indeed, by now detailed media reports have informed the entire nation about the alarmingly common incidence of lethal injections gone wrong.  We strongly urge Governor Hutchinson to reconsider his macabre execution plan.

No execution can be completely free of suffering, but lethal injection appears to be the worst method yet invented.  The Constitution prohibits the states from carrying out such “cruel and unusual” punishments.   Whatever one’s position on the death penalty, it should be beyond debate that the execution methods society chooses should not cause the prisoner excruciating pain and suffering.

Lethal injection typically involves the sequential administration of three different drugs.  The first drug is supposed to render the prisoner unconscious.  The drug that Arkansas, Oklahoma, and many other states now use for this stage is called Midazolam.  Many medical experts believe that Midazolam is inherently incapable of knocking prisoners out completely.

The second drug is designed to paralyze the prisoner.  This serves no purpose other than to ensure that no one will be able to tell if he is suffering.  The final drug causes cardiac arrest, followed by death.

Ironically, lethal injection was originally believed to be a more humane method of execution.  Proponents described the process as akin to a person going to sleep.  Instead, it is more like a nightmare.

Although frequently less bloody and perhaps easier for the public to stomach than other execution methods, lethal injection is frequently carried out under state-designed protocols that fail to ensure that the prisoner is rendered completely unconscious before the state injects the drugs that cause his death.  As Supreme Court Justice Sonia Sotomayor has observed, in such cases the prisoner may suffer “what may well be the chemical equivalent of being burned at the stake.”

That is what happened in Mr.  Lockett’s case, and in many other executions across the country.  No one disputes that Lockett suffered a horrific, gruesome, and painful death that lasted 45 minutes.  Oklahoma’s execution protocols did not account for foreseeable problems that were likely to arise.  Among many other flaws, its protocols called for woefully inadequate training for the state’s executioners and recklessly did not require them to visually monitor the injection site.  If they had, it would have been obvious that the Midazolam had not properly entered Mr. Lockett’s bloodstream.

These are not isolated mishaps, but completely avoidable and reckless errors.  Amherst Professor Austin Sarat showed that in the period from 1900 to 2010, lethal injection was by far the most frequently botched form of execution, even higher than the electric chair or the gas chamber.  During this period, states botched the lethal injection executions of 75 prisoners.
While one might think states would learn from their past mistakes, the rate of botched lethal injection executions has recently increased.  Just since Lockett’s execution in 2014, from what we can discern, there have been roughly nine more botched lethal injections.

Exacerbating the problem of faulty execution protocols is Arkansas’s rush to conduct multiple executions in a matter of days.  The foreseeable risks would be significant even with the execution of a single person; scheduling multiple executions in such a short time frame significantly increases the chance of problems.

Not only is this plan dangerous, but it is not even justified by an important reason.  Governor Hutchinson has publicly stated that he is accelerating the state’s execution schedule to save money.  Some of the drugs that the state has set aside for these executions are about to pass their expiration date, so delays may require Arkansas to purchase new drugs.

If appeals to logic and humanity are unpersuasive, perhaps the state should be concerned about a different fiscal consequence.  Should Arkansas’s reckless and ill-advised plan result in more botched executions, civil rights attorneys will no doubt sue Arkansas for damages in what will be a clear case of reckless disregard of these prisoners’ constitutional rights.

Editor's Note: Marceau and Chen are professors at the University of Denver Sturm College of Law.


Shag from Brookline said...

In a 1932 dissent of Justice Brandeis, he wrote: "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country."

I don't think Brandeis had in mind what Gov. Hutchinson is proposing. Beyond the risks to the eight individuals directly involved, the Frankenstein-ish experiment puts at risk the Constitution's Eighth Amendment.

Joe said...

"No execution can be completely free of suffering, but lethal injection appears to be the worst method yet invented."

Sounds a bit extreme. Not pining for electrocution et. al. myself.

It clearly has issues, both for the person being killed and those doing the killing. For instance, the use of a medical means for a non-medical purpose has caused problems because it is unethical for those best able to carry it out safely to be involved. Plus, it misleads to the degree it seems a pleasant death, like you are putting down a cat or dog etc. As noted by some, otoh, companion animals might have more safeguards.

The basic problem here is executing people in the first place. Usage of means is tricky. Justice Sotomayor has twice now suggested the firing squad might be better. Judge Kozinski agrees, though partially because he thinks the blunt bloody method would remind us what we are doing here -- killing a person. Others suggest inert gas will be the panacea. At least one state provides it as an alternative.

Tinker tinker.