By MARLENE MARTIN
THE U.S. death penalty system is in retreat—around an issue that few people fighting capital punishment would have predicted a few years back: problems associated with lethal injection, the primary method of carrying out executions. As of early February, of the thirty-eight states that have the death penalty, executions were on hold in fifteen (as well as in the federal system) as a result of court rulings or executive or legislative action. In most cases, these halts are related to the question of whether lethal injection violates the Constitution’s ban on cruel and unusual punishment.
In the most dramatic development, on a single day in December all executions were stopped in California and Florida—first and third on the list of states with the largest death rows—as a direct result of botched executions that revealed the flaws of lethal injection. The next day, a court halted executions in Maryland, citing lack of public review of the state’s death penalty procedure. Add the fifteen states where executions are on hold to the twelve that don’t have the death penalty—plus several others where capital punishment is legal, but executions rarely or never take place—and the fact is that the death penalty is not being practiced in a solid majority of American states.
These developments snowballed at the end of 2006 and the beginning of 2007, but they are part of a wave of opposition to the death penalty that has been building throughout the decade. The total number of executions in the U.S. dropped again in 2006 to fifty-three, a decline of almost half since the high point seven years before. The number of death sentences imposed by juries also fell last year to the lowest point in decades.
The controversy over lethal injection is also a key reason for a flurry of proposed legislation in a number of states that would enact a moratorium on the death penalty or abolish it altogether. The New Jersey legislature is expected to follow the advice of an independent commission that recommended abolition, and Democratic Governor Jon Corzine has said he will sign the bill. In Maryland, too, the new governor, Martin O’Malley (D-Md.), has said he will sign a bill ending the death penalty if the legislature passes one. There are numerous other proposed bills to stop the death penalty, from Kansas and Nebraska to Colorado and New Mexico.
Not all of these bills are likely to pass (though it is notable that many proposals are getting further in the legislative process than ever before). In a handful of states, pro-death penalty legislators are pushing back with proposals to expand the use of the death penalty. And the temporary halts on executions in states like Florida are subject to being reversed by state officials or the courts.
Texas is the only state that appears to be bucking the trend, accounting for twenty-four of the fifty-three executions in 2006—five more than in the previous year, though significantly less than the peak of forty executions in 2000. Nevertheless, the overall trend against the death penalty is clear, prompting even mainstream media outlets to ask if the end of capital punishment is near.
Lethal injection controversy
The controversy around lethal injection may have seemed narrow and legalistic at first glance. Many liberal abolitionists predicted the issue would not break any new ground in the fight against the death penalty. As David Elliot, spokesperson for the National Coalition to Abolish the Death Penalty, said, “We are concerned that debating the most humane way to execute a person diverts from the more fundamental question of whether we should be executing people to begin with. The unhappy fact of the matter is that there is no kind and gentle way to kill someone.”
Of course, the suffering involved with the present form of lethal injection is only one reason why the death penalty is wrong. But it is a reason—and the increased attention toward this reason can pull away the shroud of secrecy from the entire process and open the way for the other injustices of the capital punishment system to be exposed.
Lethal injection was introduced following the reinstatement of capital punishment in 1976. The basic system was developed by a state medical examiner in Oklahoma, who had no experience in pharmacology or anesthesia, and did no research on these subjects. A recently released Human Rights Watch study “found no evidence that any state seriously investigated whether other drugs or administration methods would be ‘more humane’ than the protocol it adopted.” Nevertheless, thirty-seven out of thirty-eight states that use the death penalty adopted lethal injection as their primary execution method, claiming that it was a more “humane” way to put someone to death.
What the current controversy has shown is that it has taken thirty years for this untested process to finally be scrutinized—during which time it has been implemented in an atmosphere of gross incompetence.
In Tennessee, there are no guidelines for how much of the lethal chemicals should be administered to prisoners—in fact, some of the protocols apply to use of the electric chair, not lethal injection. In California, guidelines call for the same amount of each drug to be given to every prisoner, regardless of body weight. According to a recent New York Times Magazine story, “Deborah Denno, a professor at Fordham University Law School, who has studied lethal injection protocols, found that only one-quarter of the states that use lethal injection specify the quantities of the drugs to be injected.”
In Missouri, the doctor in charge of executions suffered from dyslexia; he “often transposes numbers” and “can make mistakes,” according to court documents, and in several recent executions, he used only half the prescribed dose of anesthetic. He has twenty malpractice suits against him and has had privileges revoked at two hospitals. Here is how he responded to questions in testimony related to state execution procedures.
Q: Do you use calculations to determine the quantities of drugs to administer?
A: Heavens no.
Q: Is any part of the execution procedure written down?
A: I’ve never seen it.
Q: There is no guide that you follow as you’re doing it?
A: Absolutely not.
A closer view of the lethal injection procedure reveals something closer to killing by torture. A study by the British medical journal, the Lancet, found “that in 43 of the 49 executed prisoners studied, the anesthetic administered during lethal injection was lower than required for surgery. In 43 percent of the cases, drug levels were ‘consistent with awareness.’”
Three drugs are used to execute a person by lethal injection. The first drug sedates the prisoner, the second paralyzes them, and the third stops their heart. The process is designed to resemble a medical procedure and give the appearance of someone “going to sleep.” But the evidence now indicates that at least some prisoners died excruciatingly painful deaths.
In late 2006, after previously halting an execution in California due to questions about lethal injection, U.S. District Judge Jeremy Fogel held four days of hearings, including a visit to San Quentin’s death chamber. On the basis of the disturbing testimony he heard, Fogel ruled that all executions should be stopped until the state could assure that prisoners would be executed without suffering severe pain.
The hearings revealed that the second, paralyzing drug in the three-drug lethal injection process is given for no other reason but to mask any sign of pain. Thus, those being executed could be suffering unbearable pain, but can neither move nor scream.
For this reason, animals being put to death are not given a paralyzing drug. According to Human Rights Watch, “[A]t least 30 states have banned the use of neuromuscular blocking agents like pancuronium bromide in animal euthanasia because of the danger of undetected and hence unrelieved suffering.” But the paralyzing agent continues to be used in lethal injection. The only sensible explanation is to assure that people witnessing executions believe the prisoner is not suffering.
However, that didn’t happen in the case of Stan Tookie Williams. Barbara Becnel—Stan’s advocate and coauthor with him of several books against gang violence, who led the nationwide struggle to save him from execution—testified at Judge Fogel’s hearings that she saw her friend suffer awful pain in the death chamber.
As she explained in a speech at the Campaign to End the Death Penalty national convention last year,
His feet and part of his body started contorting and distorting. And I went from praying that God would take him now, because I could see he was in trouble…. Stanley Tookie Williams died a horrible, excruciatingly painful death, where he not only woke up to the horror of his lungs paralyzed, so he was being slowly smothered to death, but the drug that makes your heart stop makes your veins feel like they’re on fire at the same time as it causes a massive heart attack, so it’s as if someone picked up a Mack truck and put it on your chest.
Stan Williams was one among a number of men and women who have suffered botched executions. Michael Radelet, a sociology professor at the University of Colorado, compiled, in his words, “not a comprehensive list, but simply a listing of well-known examples” of botched executions since reinstatement of the death penalty thirty years ago. His list has thirty-eight entries.
One entry describes the gruesome death of Joseph Clark, a fifty-seven-year-old man who was put to death in May 2006 after twenty-one years on death row. Radelet writes,
It took 22 minutes for the execution technicians to find a vein suitable for insertion of the catheter. But three or four minutes thereafter, as the vein collapsed and Clark’s arm began to swell, he raised his head off the gurney and said five times, “It don’t work. It don’t work.” The curtains surrounding the gurney were then closed while the technicians worked for 30 minutes to find another vein. Media witnesses later reported that they heard “moaning, crying out and guttural noises.” Finally, death was pronounced almost 90 minutes after the execution began.
The most recent entry on Radelet’s list is for Angel Nieves Diaz, who was put to death in Florida’s death chamber on December 13, 2006.
Some 15,000 people signed a clemency petition for Diaz, a native of Puerto Rico, where the death penalty was abolished in 1929, and the governor of Puerto Rico personally appealed for the execution to be halted. Nevertheless, Diaz went to the death chamber. He spoke his last words in Spanish, saying, “The death penalty is not only a form of vengeance, but also a cowardly act by humans. I’m sorry for what is happening to me and my family who have been put through this.”
After that, an execution that was supposed to last no more than fifteen minutes took more than twice that long. “It seemed like Angel Nieves Diaz would never die,” wrote Associated Press reporter Ron Word, who has witnessed more than fifty executions in Florida. Some of the three chemicals in the lethal injection process didn’t go into Diaz’s veins, but instead into the tissue of his arms, leaving a twelve-inch chemical burn on one and an eleven-inch burn on the other. Twenty-four minutes after the first chemicals were administered, Diaz was still moving and grimacing, blinking his eyes, and seemingly mouthing words. Prison officials then moved in to administer the chemicals of death for a second time.
The day after Diaz’s botched execution, Governor Jeb Bush placed a moratorium on executions pending an investigation of what happened. In Puerto Rico, more than 100 attended Diaz’s funeral. “God chose my uncle to change history,” Jackeline Nieves said to reporters. “Now, the death penalty isn’t seen as something normal. It’s seen as the worst, most inhumane method.”
Abolition next?
The lethal injection controversy is having a profound effect on the death penalty landscape. It is both slowing the pace of executions and debates around it are reflecting the growing questioning of the death penalty in the United States.
Three decades ago, the death penalty was halted only to be restored on the grounds that its problems had been fixed. Similar efforts will be made now. Judge Fogel, for example, in his ruling that stopped executions in California, did leave open the possibility that the protocol can be “fixed.” Hearings are expected in May. Now is the time for activists to come forward and push things further.
One important front in this battle is within the medical community. In California, the execution of Michael Morales, scheduled for February 2006, was halted when two anesthesiologists said they wouldn’t abide by a court-ordered assignment to participate in the procedure if something went wrong in the death chamber. Likewise, a 2007 court ruling halting the death penalty in North Carolina came after the state medical board decided any participation by a doctor in executions violated its ethics policy.
In Missouri, where state officials “fixed” the lethal injection procedure to the satisfaction of a judge, the new protocol required an anesthesiologist to participate. But the president of a professional association for anesthesiologists posted a statement on the Internet advising his colleagues to “steer clear,” and emphasizing that participation in executions is a violation of ethical guidelines for doctors. “The legal system has painted itself into a corner and it is not our obligation to get it out,” wrote Dr. Orin Guidry. After contacting nearly 300 anesthesiologists in Missouri and Illinois, state officials could not find a single one willing to participate. As a result, executions remain on hold in Missouri.
More generally, though, abolitionists can use this crack in the system to pry open and expose its many other flaws. The single most obvious problem with the death penalty is that death sentences are given almost exclusively to defendants who are too poor to afford their own attorney. Also, African Americans continue to be sentenced to death and executed far out of proportion to their numbers in the population. And when it comes to these other issues, the execution machine is very cruel, but not that unusual.
Why is this one specific flaw in the execution machine in the spotlight? Because the concern over lethal injection is becoming the means for reflecting all the other doubts about the death penalty system. The Court is under pressure, but but not to the point that that it is likely to issue a broad ruling to abolish the death penalty based on racism or class bias, since this would open the whole justice system to further scrutiny. It will more likely come up with a narrower reason, or one specific to the death penalty, to abandon capital punishment—for example, that the lethal injection process cannot be fixed, or that society’s “evolving standards of decency” have changed regarding the death penalty. It is worth remembering that the ruling in Roe v. Wade wasn’t about “a woman’s right to choose,” but on more technical grounds —the “right to privacy.”
We shouldn’t confuse the technical reasons that judges use to act with the real factors driving their decisions—the failure of the death penalty system itself, and the threat that the whole justice system might be further discredited. Political pressure—whether in the streets or in the courts or from the series of journalistic articles exposing the tragic stories of those who were wrongfully incarcerated—will be what made the difference.
The momentum is certainly toward abolition, as a result of a confluence of pressures on the death penalty system. For example, the national and international struggle to save Stan Tookie Williams led to a profound questioning of the use of the death penalty, and the fight itself brought together thousands of activists, young and old, in a multiracial and multiethnic fight for his life.
Many of those same activists then led the charge against lethal injection following Stan’s killing. The Campaign to End the Death Penalty, for example, hosted a “Witness to Execution” tour in cities across the U.S. in 2006, with Barbara Becnel telling in graphic detail what she witnessed the night her friend of thirteen years was put to death by the state of California.
With the struggle for abolition reaching an important stage, opponents of the death penalty should be clear that the best way to win is to continue to highlight the flaws of the system, and show the human side of this tragedy by highlighting the voices of the exonerated and family members of those on death row. The death penalty is only the tip of the iceberg in terms of what is wrong with the criminal injustice system. All of the problems with the way the death penalty is applied—its arbitrary character, the bias against the poor and people of color—exist in the rest of the criminal justice system, too. We cannot sidestep that issue.
Even if government officials can come up with an execution protocol that eliminates the possibility of prisoners being tortured to death, the death penalty will remain barbaric and sickening. Mixing the chemicals differently is no solution. Abolishing the death penalty is.
Marlene Martin is the national director of the Campaign to End the Death Penalty.
