New Method, Same Old Problems

As Mike recently blogged, the State of Alabama last week carried out the nation's first execution by nitrogen hypoxia.  Before long there were conflicting reports about whether Kenneth Smith's execution was "humane and effective" or badly botched.  Alabama described a "textbook" execution and called for other states to emulate its new gas protocol.  The journalist Lee Hedgepeth, by contrast, reported that shortly after the nitrogen began flowing, Smith "began thrashing against the straps, his whole body and head violently jerking back and forth for several minutes."

Grisly execution details are not new.  For years, experts have warned that lethal injection posed significant risks of excruciating pain.  The three-drug protocol, which was the sole method of lethal injection until 2010 and remains in use in some states today, is especially problematic.  Execution observers have detailed numerous executions gone awry, such as Oklahoma's 2014 execution of Clayton Lockett, during which Mr. Lockett writhed and strained in agony on the gurney.  

Lockett's execution is hardly the only problematic one.  The death penalty scholar Austin Sarat measures the lethal injection "botch" rate at 7.12%.  Given that the three-drug protocol includes a paralytic (usually pancuronium bromide), it is quite possible that Sarat's figures do not include other inmates who suffered excruciating deaths.  Paralytics conceal pain.  An inmate executed by a three-drug protocol including pancuronium might appear to die peacefully but in reality suffer torturous pain.  Of course, because executions usually successfully end the inmate's life, we can't know for sure.  

One might think that these problems with lethal injection would cause courts to think twice before blessing death penalty procedures subject to constitutional attack.  In fact, the opposite is true.  Around 2006, a few courts struck down some state three-drug lethal injection protocols as unconstitutional under the Eighth Amendment.  (Full disclosure: I was a member of the litigation team challenging Missouri's protocol in one of those cases, Taylor v. Crawford.)  In the years since then, the U.S. Supreme Court has made it increasingly difficult to bring successful Eighth Amendment challenges to execution protocols.  Decisions like Baze v. Rees, Glossip v. Gross, and Bucklew v. Precythe took an already high Eighth Amendment standard and ratcheted it up so as to make it nearly impossible to successfully challenge a method of execution.  

The most interesting thing about Baze (2008), Glossip (2015), and Bucklew (2019) is that they have not made it any easier for states to carry out executions.  To the contrary, as courts have given the green light to states to execute capital inmates however they please, a variety of other factors have conspired to obstruct executions.  In 2007, the year before Baze, there were 42 U.S. executions.  Between 2016 and 2023, the number of annual executions has hovered between 11 and 25, with an average of 20 per year.  The Court's Eighth Amendment uber-deference has made it more difficult to win constitutional method-of-execution challenges, but it hasn't paved the way for more executions.  

The common wisdom was that the states' difficulties carrying out executions was tied up in the problem of lethal injection itself.  Because lethal injection is a medical-ish procedure, states need to enlist the participation of the medical establishment, which usually prefers not to participate.  Most notably, states must procure drugs for their procedures, but starting in the early 2010s, they found it increasingly difficult to do so.  Pharmaceutical companies wanted to distance themselves from the "machinery of death," and many smaller pharmacies soon followed suit. 

States also had some trouble finding qualified personnel, such as doctors, nurses, or phlebotomists, to help design and implement their lethal injection procedures.  While the absence of qualified personnel might not necessarily halt executions (remember, the Court is very deferential to states here and doesn't really care whether the states know what they're doing), unqualified personnel heighten the risk of botched executions.  The rise of visibly botched executions, in turn, prompted numerous states to halt executions for years as they tried to figure things out.  Oklahoma is case in point.  After the botched Lockett execution and some other prominent problems with its lethal injection procedure, the State went six-and-a-half years before putting another capital inmate to death. 

It is true that many of the states' problems stemmed from the medical establishment's refusal to play a role in killing people.  Pharmaceutical companies worried about institutional investors, and even much smaller pharmacies realized that participation in the death penalty could bring really bad PR.  Doctors and nurses, for their part, usually didn't want to participate due to their own professions' codes of ethics and, in some cases, their own personal ethical codes. (For a discussion of the ethics of non-participation if that risks causing additional suffering to the people being executed, see Mike's latest Verdict column.)  These (and many other) problems prompted some states to look for yet another method of execution that wouldn't come with the pesky medical-ethics baggage.  

It's way too early to know whether states will increasingly look to nitrogen gas as an alternative to lethal injection, but Alabama's recent experience suggests that nitrogen is not the answer.  If this is the case, it could be indication that the myriad difficulties with lethal injection are not solely because of their quasi-medical nature.  The larger issue may be that it is difficult to end a human life using a method that appears peaceful and does not inflict excruciating pain.  To do so requires care and expertise, and usually states lack both.  

As I speculated some years ago, there are many reasons states bungle executions so badly. As noted above, it's hard to find qualified personnel to design and implement execution protocols.  State departments of corrections also tend to be tunnel-visioned, focusing more on the political pressures of carrying out executions expeditiously and less on designing unproblematic methods of execution.  Moreover, because immunity doctrines and other laws mostly protect those officials from tort suits and other legal consequences should problems arise, officials have little incentive to design a protocol with great care.  State secrecy laws further insulate state execution methods from external scrutiny, indirectly heightening the risk that officials will make avoidable mistakes.  Finally, many human beings understandably don't want a part of this grisly business, so few state officials want to take ownership of the problem to make sure they get it right.  The result of all this is that states tend to charge ahead with executions and insist that everything went according to plan (see Alabama), rather than to put in the care necessary to design a "safe" method of execution ("safe," in this context, meaning an execution that poses little to no risk of excruciating pain).  

The disconnect between Alabama's and the media's accounts of Mr. Smith's death is a microcosm of American executions for decades.  Observers recount gruesome stories of inmates writhing in agony.  States insist that there's nothing to see here.  

The bigger question is how this all will affect the death penalty writ large.  Public support for capital punishment is shrinking, and the number of annual death sentences has plummeted.  In 1998, judges and juries imposed 295 death sentences.  Between the 2020 and 2022, there were between 18 and 21 new death sentences each year.  Since 2007, eleven states have effectively eliminated the death penalty.  The states' continual bungling of executions plays some role in this changed landscape, though so, of course, do other problems with the death penalty, such as false convictions, cost, and racial disparities.  

I tend to find overly optimistic predictions that the death penalty itself will die soon.  Capital punishment is surely withering, but it is a state institution, and it has enough political support in enough states that I can't see it disappearing entirely in the foreseeable future.  Certainly the current Supreme Court won't hasten its demise.  

But even though the death penalty isn't yet dead, it is fading, and Alabama's recent performance is part of the reason.  Reasonable people can disagree on the morality of capital punishment, but the myriad problems with the death penalty in practice are undeniable.  Many of the states most intent on using the death penalty, though, appear to be most in denial of these very problems.  Eyewitness observers describe executions where inmates "thrash[] against the straps."  State officials insist that everything went according to plan and offer to share their blueprints with other states.  As in many realms of American life, it is as though we are living in alternate realities.