The Fate of Lethal Injection: Decomposition of the Paradigm and Its Consequences

In April 2017, with its supply of lethal injection drugs about to expire and with 32 inmates still on its death row,

This figure was found by taking Arkansas's current death row population, subtracting the number of people sentenced since 2017, and adding the number of people executed in 2017 (“Death Row” 2021; “Executions” 2021).

Eight years later, in 2013, after failing to obtain new supplies of those drugs, Arkansas adopted a new execution protocol which called for the use of lorazepam and phenobarbital.

Ark. Dep’t of Corrections, Lethal Injection Procedure (Attachment C) (2013).

The first of Arkansas's 2017 executions, and its first using midazolam, was that of Ledell Lee, who had been sentenced to death in 1995 for the rape and murder of his 26-year-old neighbor, Debra Reese. Lee had two trials. Several alibi witnesses testified during his first trial, which ended in a hung jury. At his second trial, the defense inexplicably called no alibi witnesses, and the jury found Lee guilty.

Ed Pilkington, ‘The New Evidence Raises Deeply Troubling Questions’: Did Arkansas Kill an Innocent Man?, The Guardian (Jan. 23, 2020), https://www.theguardian.com/us-news/2020/jan/23/arkansas-death-penalty-ledell-lee-execution.

After placing intravenous lines (IVs) in Lee's arms, Arkansas's execution team started the flow of midazolam at 11:44 p.m.

Aziza Musa, Eric Besson & John Moritz, Arkansas Carries out 1 execution; at 11:56p.m., drugs end Lee's life, Arkansas Democrat Gazette (Apr. 21, 2017), https://www.arkansasonline.com/news/2017/apr/21/state-carries-out-1-execution-20170421/.

As a young child, Jack Jones's father abused him, and he suffered “sexual abuse at the hands of three strangers who abducted and raped him.”

Lindsey Millar, The Jack Jones, Marcel Williams Execution Thread, Ark. Times (Apr. 24, 2017), https://arktimes.com/arkansas-blog/2017/04/24/the-jack-jones-marcel-williams-execution-thread.

When they arrived, investigators found Lacy in a closet tied to an office chair.

Rolly Hoyt, Lawmen Recall Jack Jones’ Chilling Murder, Rape of Mary Phillips, THV11 (Apr. 25, 2017), https://www.thv11.com/article/news/local/lawmen-recall-jack-jones-chilling-murder-rape-of-mary-phillips/91-433258301.

More than two decades after the sentencing, guards steered the wheelchair-bound Jack Jones

He developed diabetes in prison and had a leg amputated.

Throughout the fourteen-minute execution, correctional staff checked Jones's consciousness by sticking a tongue depressor in his mouth, “lifting his eyelids and rubbing his sternum.”

Ed Pilkington, Jamiles Lartey & Jacob Rosenberg, Arkansas Carries out First Double Execution in the U.S. for 16 years, The Guardian (Apr. 25, 2017), https://www.theguardian.com/us-news/2017/apr/24/arkansas-double-executions-supreme-court-jack-jones-marcel-williams.

His legal team and state officials interpreted the movement of the inmate's mouth in different ways. Jones's lawyers contended that he “was moving his lips and gulping for air [which is] evidence that the [midazolam] did not properly sedate him.”

Id.

Witnesses also could not see the problems that ensued an hour earlier when the state made several attempts to place an adequate IV. For 45 minutes, they could not find a suitable vein.

Andrew DeMillo & Kelly P. Kissel, Arkansas Executes 2 Inmates on the Same Gurney, Hours Apart, AP News (Apr. 25, 2017), https://apnews.com/article/health-us-news-arkansas-ar-state-wire-ap-top-news-f5105c1f0d4e4accab1130e0fe4d7ef3.

The same day it executed Jones, Arkansas also put Marcel Williams to death. Williams had been convicted and sentenced to death for the 1997 kidnapping, rape, and murder of a 22-year-old mother, Stacy Errickson.

Frank E. Keating, Arkansas Jurors Were Never Told of Marcel Williams’ Life; Grave Error, Judge Said, Ark. Democrat Gazette (Apr. 24, 2017), https://www.arkansasonline.com/news/2017/apr/25/jurors-were-never-told-of-williams-life/.

The executions of Jack Jones and Marcel Williams were followed by an even more troubling execution three days later—the fourth and final killing of the week. This time, it was Kenneth Williams whom Arkansas put to death. Williams grew up in an abusive household.

Erika Ferrando & Kaitlin Barger, Kenneth Williams, Convicted Murderer of UAPB Cheerleader, to Be Executed Thursday, THV 11 (Apr. 28, 2017), https://www.thv11.com/article/news/local/kenneth-williams-convicted-murderer-of-uapb-cheerleader-to-be-executed-thursday/91-434214516.

On April 27, 2017, Williams became the 200th person, and the 140th black man, executed in Arkansas since 1913.

In 1913, Arkansas switched from hanging to electrocution. Id.

Despite those widely-reported details, state officials insisted that everything went as planned, calling the execution “flawless.” A Department of Corrections spokesperson insisted that “Williams [only] coughed without sound—in direct contradiction of media witness testimony.”

Phil McCausland, Arkansas Execution of Kenneth Williams ‘Horrifying’: Lawyer, NBC News (Apr. 27, 2017), https://www.nbcnews.com/storyline/lethal-injection/arkansas-executes-kenneth-williams-4th-lethal-injection-week-n752086.

Yet an independent autopsy confirmed that Williams's execution was anything but flawless. Joseph Cohen, the California-based pathologist who conducted it, concluded that Williams “experienced pain” and likely felt “a sensation of air hunger, fear, shortness of breath, respiratory distress, and dizziness.”

Moritz, supra note 21.

This single week in Arkansas provides a window into the fate of lethal injection and the consequences of the decomposition of the standard three-drug-protocol. For every lethal injection during the more than thirty years between 1977 and 2009, states used only a single lethal injection protocol. However, drug shortages beginning in 2009 forced death penalty states to make a lethal choice. They could halt capital punishment, revive defunct methods of execution, or try new ways of carrying out lethal injection. Most made the third choice, turning to untested drugs and drug combinations.

As a result, over the course of the last decade, the lethal injection paradigm decomposed. For many years, lethal injection involved the use of a single drug combination. Now it signifies an execution method that uses a wide variety of drugs and procedures.

Even as it encountered mishaps in its rapid-paced executions, Arkansas did not slow down. Instead, it hid behind various provisions in its execution procedure—such as inserting the IV behind a curtain and switching off the microphone after an inmate's final words—that obscured key parts of the execution process from view. The state insisted, against considerable evidence to the contrary, that all went according to plan. More than three years later, a federal court cleared Arkansas to continue using midazolam in its executions as long as it tweaked its procedures slightly.

Andrew DeMillo, Federal Judge Upholds Use of Sedative in Arkansas Executions, AP News (Jun. 2, 2020), https://apnews.com/article/c3bdd9dc861f99d24aaceba12569fbb2.

This article shows that as lethal injection protocols and drugs proliferated and as the paradigm decomposed, executions became more error-prone and unpredictable. At the same time, states revised their protocols in ways that made it harder to say when executions did not conform to those protocols’ requirements. In Part 1, we recount the origins of the once-standard three-drug protocol. In Part 2, we discuss that protocol's collapse and the rise of new lethal injection techniques. In Part 3, we discuss what happened in the execution chamber during lethal injections carried out between 2010 and 2020 and show that as states switched to new drug protocols, lethal injection became more mishap-prone. In Part 4, we examine state responses to the threat mishaps pose to lethal injection. In the face of criticism, they adopted secrecy statutes and adjusted their procedural documents to both prevent and obscure mishaps. In our conclusion, we take up what lethal injection's decomposition means for the practice itself and for America's continuing use of capital punishment.

The post-2009 period has witnessed the unravelling of the original lethal injection paradigm with its three-drug protocol. By 2016, no states were employing it. Instead, they were executing people with a variety of novel drug combinations. The shift from one dominant drug protocol to many was made possible by the advent of a new legal doctrine that granted states wide latitude to experiment with their drugs. This doctrine had its beginnings in the Supreme Court's Baze v. Rees

553 U.S. 35 (2008).

In 2004, Ralph Baze, who had been sentenced to death in Kentucky for the murder of a sheriff and deputy sheriff, and another inmate on death row, Thomas Bowling, filed lawsuits challenging the constitutionality of their upcoming executions. They contended that lethal injection violated the Eighth Amendment because an improper administration of the traditional three-drug protocol could cause “excruciating pain.” They argued that because other execution methods posed a “lower risk of causing pain or suffering,” the lethal injection protocol could inflict “unnecessary and wanton... pain.” Baze and Bowling proposed two alternative protocols in their suit. The first used only sodium thiopental to cause an overdose, eschewing the second and third drugs. The second alternative omitted the paralytic agent while retaining the first and third drugs.

After the Kentucky Supreme Court upheld the state's execution protocol, Baze and Bowling appealed to the Supreme Court. The Court ruled 7-2 against Baze and Bowling. The plurality opinion, written by Chief Justice Roberts and joined by Justices Samuel Alito and Anthony Kennedy, found lethal injection to be constitutional. Furthermore, it introduced the requirement that any plaintiff mounting an Eighth Amendment challenge to a method of execution had to present a “feasible, readily implemented” alternative that would “significantly reduce a substantial risk of severe pain.”

Baze v. Rees, 553 U.S. 35, 52 (2008).

Baze indicated that the Court would defer to the choices states made concerning their execution protocols. It assigned to plaintiffs the burden of proving that protocols created an unconstitutional risk, rather than requiring states to prove that they did not do so.

This standard, promulgated by the plurality of the Court in Baze, became the basis for the majority opinion in Glossip v. Gross, 135 S. Ct. 2726 (2015). In Glossip, petitioners challenged Oklahoma's midazolam lethal injection protocol. The Court held that the protocol was permissible for the same reasons as Kentucky's use of the traditional three-drug protocol challenged in Baze. Nowadays, the requirement that inmates present a readily available alternative method that significantly reduces a substantial risk of severe pain is known as the Glossip doctrine.

Just after Baze, an Ohio court decided that the state could no longer use a three-drug execution protocol because it contravened state law.

Denno, supra note 68, at 1354.

Ohio's break from tradition was the first step in lethal injection's decomposition. Though its switch was the result of litigation in state court, other states quickly followed suit, adopting the one-drug protocol because of its relative simplicity.

Denno, supra note 68, at 1358–60.

Just as Ohio's one-drug execution method began to spread, states started to encounter difficulties in obtaining execution drugs. Bowing to pressure from abolitionist groups, many American drug manufacturers decided to limit the distribution of drugs used for lethal injections. One producer, the American pharmaceutical company Hospira, stopped producing sodium thiopental entirely.

Jeffrey E. Stern, The Cruel and Unusual Execution of Clayton Lockett, The Atl. (Jun. 13, 2015), https://www.theatlantic.com/magazine/archive/2015/06/execution-clayton-lockett/392069.

With American supply chains cut off, some states turned to European drug companies.

Raymond Bonner, Drug Company in Cross Hairs of Death Penalty Opponents, The N.Y. Times (Mar. 30, 2011), https://www.nytimes.com/2011/03/31/world/europe/31iht-letter31.html.

In response to these decisions, states soon followed Oklahoma's lead and started to use drugs like pentobarbital. Thirteen states held pentobarbital executions in 2011 alone.

The states were Oklahoma, Texas, South Carolina, Mississippi, Alabama, Arizona, Georgia, Delaware, Virginia, Florida, Idaho, and Ohio.

However, the switch to pentobarbital did not alleviate supply pressures.

Ohio Turns to Untried Execution Drug Mix Due to Shortage of Pentobarbital, The Guardian (Oct. 28, 2013), http://www.theguardian.com/world/2013/oct/28/ohio-untried-execution-drugs-pentobarbital-shortage.

In 2013, Florida geared up to conduct the nation's first execution using midazolam hydrochloride as the first drug in its three-drug protocol.

Just as we do not typically distinguish between protocols that use close analogues in the second or third drugs, we do not distinguish between protocols using midazolam and midazolam hydrochloride. Newspaper reports and administrative protocols are generally not specific enough to do so; Morgan Watkins, Happ Executed Using New Drug, The Gainesville (Oct. 15, 2013).

Two of those states, Ohio and Arizona, did not just replace the first drug in the traditional three-drug protocol with midazolam, they also dropped the second and third drugs for hydromorphone, an opiate made from morphine.

Hydromorphone had never been used in a lethal injection. The federal court that approved the first execution with Ohio's new protocol wrote, “There is absolutely no question that Ohio's current protocol presents an experiment in lethal injection processes” (In re Ohio Execution Protocol Litig., 994 F. Supp. 2d 906 (S.D. Ohio 2014)).

However, states have continued to experiment with other drugs and drug combinations. Their forays beyond the well-trodden ground of barbiturates, the class of drugs to which sodium thiopental and pentobarbital belong, did not end with midazolam. In 2017, when drug manufacturers refused to provide Florida with that drug, the state chose to use a different sedative, etomidate, in its place. Etomidate is an ultrashort-acting sedative and anesthetic that has no analgesic (pain-blocking) abilities, and it had never before been used in an execution.

Lesley M. Williams, Katharine L. Boyd & Brian M. Fitzgerald, Etomidate, StatPearls (July 25, 2021), http://www.ncbi.nlm.nih.gov/books/NBK535364; Jeffrey L. Giese & Theodore H. Stanley, Etomidate: A New Intravenous Anesthetic Induction Agent, 3 J. Hum. Pharmacology & Drug Therapy 251, 251–58 (1983).

Florida conducted seven executions with etomidate in combination with rocuronium bromide and potassium acetate between 2017 and 2019. In fact, that protocol's third drug was also a novel choice: Oklahoma inadvertently used potassium acetate instead of potassium chloride in a 2015 execution, but no state had used it intentionally until Florida adopted it in 2017.

Like Florida, Nebraska had trouble acquiring its lethal injection drugs in the latter part of the 2010–2020 decade. After it failed for years to find drugs, the state allowed its corrections director to choose a new protocol. In 2018, Nebraska held the only American execution conducted with a four-drug combination when it used diazepam, fentanyl, cisatracurium besylate, and potassium chloride.

Mitch Smith, Fentanyl Used to Execute Nebraska Inmate, in a First for U.S., N.Y. Times (Aug. 14, 2018) https://www.nytimes.com/2018/08/14/us/carey-dean-moore-nebraska-execution-fentanyl.html.

By the end of 2020, states had used at least ten distinct drug protocols in their executions.

The true number is likely higher due to untraceable differences in analogous second and third drugs.

Figure 2

From 2010 to the end of 2020, states and the federal government carried out 335 lethal injections, making up the overwhelming majority of executions in that decade.

In that time, Virginia electrocuted two people, Utah shot one, and Tennessee electrocuted five for a total of 343 executions.

Problems in American executions are, of course, nothing new. For as long as America has used capital punishment, states have encountered such problems. Sarat reports that 3 percent of the executions carried out from 1890 to 2010 were botched in some way.

Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty (2014).

To analyze lethal injection's problems over the last decade, we examined every execution for evidence of mishaps: discrete, identifiable moments in an execution when lethal injection faltered. Mishaps include identifiable procedural errors committed by the execution team. For example, officials sometimes start the injection early, before the inmate can finish their last words. In other cases, executioners are unable to set intravenous lines or set them incorrectly. Mishaps also include unforeseen bodily reactions to lethal drugs, such as inmates crying out, claiming that the injections burn, coughing, gasping, or heaving their chests. These reactions signal that an inmate underwent unnecessary emotional or physical suffering, or otherwise responded to the execution in an unexpected way.

Such mishaps occurred in many lethal injections during the last decade.

To find mishaps, we conducted a thorough examination of every execution attempt from 2010 to 2020. First, we used the Death Penalty Information Center's (DPIC) execution database (“Execution Database” 2021) to build a list of every execution in the United States over those 11 years. Then, we compiled multiple first-hand news articles about each execution. Since court filings often contain more detailed information about specific executions, we used state and federal court documents to augment our database. We then developed a coding system to standardize how we would classify events in each execution. For example, to identify “sudden respiration”, we looked for the keywords “gasping”, “snorting”, “coughing”, “sputtering”, “grunting”, “blowing”, and “choking” in the documents. Another researcher did a blind re-coding of every execution to ensure accuracy. We further augmented the DPIC's database with the drugs used in each execution.

In 1999, when he was 23, Lockett beat and raped a group of young women before shooting and killing one of them.

Ziva Branstetter, Death Row Inmate Killed Teen Because She Wouldn’t Back Down, Tulsa World (Apr. 20, 2014), https://tulsaworld.com/news/local/crime-and-courts/death-row-inmate-killed-teen-because-she-wouldnt-back-down/article_e459564b-5c60-5145-a1ce-bbd17a14417b.html.

Fifteen years later, after attempting suicide on the morning of his execution, guards dragged Lockett into Oklahoma's death chamber.

Guards had to use a Taser on Lockett to get him to leave his cell that morning.

At 6:23 p.m., the executioners started the flow of midazolam. Lockett looked confused for several minutes as he waited for the drugs to take effect, then closed his eyes. During the first consciousness check, the doctor found that Lockett was still conscious, prompting a two-minute pause before a second check. The second time, the doctor determined that Lockett was unconscious. At this point, the executioners injected the paralytic, vecuronium bromide.

After the injection, Lockett moved his feet and head while mumbling, “Oh, man.” He began to writhe and struggle against the restraints holding him down. On the electric heart monitor, his heart rate fell by two thirds. The doctor again entered the execution chamber and lifted the sheet, revealing a “protrusion the size of a tennis ball” where the IV had failed.

Stern, supra note 99.

Lockett's botched lethal injection was one of the most infamous in the death penalty's recent history. However, even when the execution team sets effective lines, or realizes that they cannot set an effective IV and stops the execution, the process is often painful. As executioners poke and prod inmates with needles, they fall back on a variety of techniques that inflict substantially more pain than simply placing an IV into an arm.

This kind of mishap occurred, for instance, in the attempted execution of 69-year-old Alva Campbell. Campbell had been sentenced to death for killing a teenager during a carjacking 20 years prior to his execution. In November 2017, an Ohio medical team used an ultraviolet light to probe both of Alva Campbell's arms for a suitable vein. The team poked Campbell twice with a needle in his right arm, then once in his left. But Campbell had lung cancer, chronic obstructive pulmonary disease, pneumonia, and relied on daily oxygen treatments; none of his veins could support the IV. When they tried his left leg, Campbell threw his head back and cried out in pain. The Columbus Dispatch reported that after the prison director called off the execution, “Campbell removed his glasses and appeared to rub tears from his withered face”; Marty Schladen, After Four Unsuccessful Needle Pokes, Columbus Killer's Execution Called Off, Columbus Dispatch (Nov. 15, 2017), https://www.dispatch.com/news/20171115/after-four-unsuccessful-needle-pokes-columbus-killers-execution-called-off.

Even if the IV is set correctly, the rest of the lethal injection process is not pain free. In 4.8 percent of the last decade's lethal injections, inmates said they were in pain at some point during the execution. One such inmate was Anthony Shore who was executed for a series of murders that led him to be known as the “Tourniquet Killer.”

Jolie McCullough, Texas Executes Houston Serial Killer Anthony Shore, Tex. Tribune (Jan. 18, 2018), https://www.texastribune.org/2018/01/18/texas-nations-first-execution-year-set-houston-serial-killer; Ed Pilkington, Texas to Execute Third Prisoner This Year amid Reports of Botched Killings, The Guardian (Feb. 1, 2018), http://www.theguardian.com/us-news/2018/feb/01/texas-to-execute-third-prisoner-this-year-amid-reports-of-botched-killings.

On January 18, 2018, with IVs already set, Shore apologized to his victims, saying that “no amount of words or apology could ever undo what I’ve done... I wish I could undo the past, but it is what it is.”

Michael Graczyk, ‘Tourniquet Killer’ Executed in Texas for 1992 Strangling, AP News (Jan. 19, 2018), https://apnews.com/article/bd1b3d2b064f48d5a4cf3c4c5df47357.

The burning sensation that Shore reported occurs with surprising frequency in lethal injections.

Lawyers have called upon medical experts to explain the phenomenon in the courtroom. In Ohio's long-running lethal injection consolidated case, a federal district court received hundreds of pages of testimony from doctors and pharmacists about the effects of midazolam. As one doctor in that case remarked, “midazolam itself is highly acidic, and while that is not problematic when the drug is used in therapeutic doses, at the dosage used in the protocol, it may cause severe burning pain upon injection.” Another doctor, this time called by the state, disagreed and argued that midazolam could not cause a burning sensation, even in high doses. Ultimately, the court ruled that it was “certain or very likely that... midazolam cannot reduce consciousness to the level at which a condemned inmate will not experience severe pain” Henness (In re Ohio Execution Protocol Litig.) 2019 U.S. Dist. LEXIS 8200 (U.S. D. C. S.D. Ohio 2019). Though an appellate court later reversed the court's ruling, the mishap in Shore's execution—inmates reporting pain during their executions—is central to today's legal challenges to lethal injection.

In 83 lethal injections, the inmate spoke or made noise after the injection began, utterances that ranged from screams, to sobs, to slurred sentences.

Often, witnesses cannot tell if an inmate is making sounds because many states’ execution chambers block any sounds from escaping. For example, in Arkansas's 2017 execution of Jack Jones, witnesses remarked that it looked as if Jones was making noise, but the state disputed that. States sometimes decide to turn off death chamber microphones soon after specific executions. For example, Oklahoma's September 2014 protocol required the execution team to turn off the microphone after the inmate's last words. In April 2014, before the execution of Clayton Lockett, Oklahoma's protocol did not mention the microphone at all. Microphone procedures are also the subject of death penalty litigation. The 9th Circuit recently ruled that Arizona had to keep its microphones on during executions to make sure that press witnesses could hear what happened, which would prevent the ambiguity seen in Jack Jones's execution (First Amendment Coalition v. Ryan, 938 F.3d 1069 (9th Cir. 2019)).

Some of these reactions may be inevitable consequences of death by lethal injection. Lethal injection works on a microscopic level inside of the inmate, concealing its operation from view.

David R. Dow, The Beginning of the End of America's Death-Penalty Experiment, Politico (July 25, 2014) https://www.politico.com/magazine/story/2014/07/the-beginning-of-the-end-of-americas-death-penalty-experiment-109394.

Though it is often impossible for inmates to display what is happening during a lethal injection, certain mishaps show that lethal injection is far removed from the original promise that it would allow the condemned to die by peacefully falling asleep. In September 2020, a NPR investigation found signs of pulmonary edema—fluid filling the lungs—in 84 percent of the 216 post-lethal injection autopsies it reviewed.

Noah Caldwell, Ailsa Chang & Jolie Myers, Gasping for Air: Autopsies Reveal Troubling Effects of Lethal Injection, NPR (Sep. 21, 2020), https://www.npr.org/2020/09/21/793177589/gasping-for-air-autopsies-reveal-troubling-effects-of-lethal-injection.

As states switched drug protocols, the frequency of mishaps shifted dramatically. Most striking among these shifts is the increased frequency with which witnesses or newspapers said that executions were “botched.” Between 2010 and 2020, newspapers and independent witnesses used this term to describe 28 of the lethal injections, or 8.4 percent.

Newspapers and witnesses rarely have access to the administrative documents that govern executions, but they often pick out when something seems to have gone wrong. As such, we counted executions in this category when journalists mentioned something out of the ordinary in addition to when they used the word “botch” itself. This was a slight increase in the rate from 1980 through 2010 when Sarat et al. found that 7.1 percent of lethal injections were botched. Sarat, supra note 97, at 177.

Another striking difference between barbiturate combination protocols and the bevy of novel cocktails is how long they take to work. We found that, between 2010 and 2020, barbiturate overdose executions lasted 62 percent longer than barbiturate combination executions, including the traditional three-drug protocol.

This difference is made even more remarkable by the fact that some states require a short waiting period between the first and following drugs in barbiturate and sedative combination executions. Despite that brief break, one-drug barbiturate overdose protocols took longer.

As shown in Figure 3 below, the average execution time in 2010 was just over nine minutes. In 2020, the average time was over 20 minutes. More than 74 of the executions we analyzed took longer than 20 minutes—four times longer than lethal injection's creators expected the method to take.

As we remarked in Part 1, the sponsor of Oklahoma's trailblazing lethal injection bill expected each execution to take less than five minutes.

Figure 3

Figure 4 helps explain why. Sedative combination protocols, which were commonly used in the latter half of the last decade, take over twice as long to kill as barbiturate combination protocols, which were predominately used in the first half.

Figure 4

States responded to the kind of mishaps we have described in two ways.

As states switched to drug protocols associated with more mishaps, the media began to pay more attention to problems associated with lethal injection. In an article about the rhetoric of mistake in lethal injection, Jody Madeira reports, “[N]ews coverage of flawed lethal injections skyrocketed in 2014 from a yearly average of approximately 100 articles from 2010 to 2013 to approximately 1300 articles per year in 2014” (Jody Lyneé Madeira, The Ghosts in the Machinery of Death: The Rhetoric of Mistake in Lethal Injection Reform in Law's Mistakes 104 (Austin Sarat, Lawrence Douglas & Martha Umphrey eds., 2016)). The increased media coverage occurred in step with a steady decline in the percentage of Americans in favor of the death penalty. These factors may have applied additional pressure on states to avoid mishaps, or else face further disfavor.

A

Avoiding Mishaps: Procedural Specificity

As the lethal injection paradigm decomposed, some death penalty states attempted to avoid preventable errors with procedural adjustments. For example, they added steps to parts of the lethal injection process where preventable mishaps commonly occur, such as in the injection of the sedative or anesthetic. If the executioners inject the second or third drugs before the first drug anesthetizes the inmate, the condemned will suffer excruciating pain. Similarly, paralytics must have time to immobilize the inmate lest pain be apparent to witnesses as they jerk and squirm on the table. In the late 2000s and early 2010s, at least nine states

These states are Arizona, Delaware, Idaho, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, and Virginia.

began to specify waiting periods between the injection of each drug in the lethal cocktail. One particularly instructive case is Virginia, which made no mention of waiting periods in its October 2010 protocol. However, the state's July 2012 protocol called for a 30 second waiting period after the first drug's injection. By February 2014, Virginia's procedure called for a two-minute waiting period at the same juncture.

In 2010, Virginia's first drug was sodium thiopental. In 2012, its first drug was pentobarbital. In 2014, Virginia permitted the first drug to be sodium thiopental, pentobarbital, or midazolam; regardless of the drug, it prescribed a two-minute waiting period. Another example is Pennsylvania, which added a two-minute waiting period to its procedure in 2010.

After 2010, at least seven

These states are Alabama, California, Idaho, Oklahoma, Pennsylvania, South Dakota, and Virginia.

state procedures required that officials conduct “consciousness checks” on the condemned inmate. Executioners must evaluate an inmate's consciousness with auditory and physical stimuli between injecting the first and second drugs. For example, in its December 2010 protocol, Pennsylvania instructed officials to close the curtain and call the inmate's name in a loud voice before “assess[ing] consciousness of the inmate by tactical stimulation... touching the inmate's shoulder and brushing the inmate's eyelashes.”

In August 2013, Missouri added a provision for medical personnel to “use standard clinical techniques to assess consciousness, such as checking for movement, opened eyes, eyelash reflex, [and] pupillary responses or diameters.” Some states specify that officials should use an electroencephalogram, which monitors brain activity, or other medical technology to assess inmates’ consciousness.

A few states also added specificity when it comes to the placement of IVs, especially after the botched execution of Clayton Lockett. For example, Oklahoma added a number of mishap-preventing and mishap-detecting provisions to its lethal injection protocol. It required officials to record the number of IV insertion attempts, read the drug name out loud before its administration, leave the IV in the inmate after death for a medical examiner to see, and ensure the IV insertion remained visible.

Ohio's 2004 protocol only briefly mentions IV access. It records a preference for setting IVs into the inmate's arms, but does not require the execution team to ensure the IVs are working. In 2009, before Lockett's ill-fated execution, Ohio began to specify that executioners use a saline drip to test the IVs, perform vein assessments ahead of time, and ensure that the IV insertion points are visible throughout the execution.

Procedural specificity also occurs in protocols that identify decisional contingencies (if, then) in the lethal injection process. We call this “branching.” From 2010 to 2020, many lethal injection protocols came to resemble decision trees with many branches, rather than a simple set of instructions. Figure 5 displays Ohio's protocol as a decision tree.

Figure 5

At least 14 states

These states are Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Kentucky, Missouri, Nebraska, Ohio, Oklahoma, Tennessee, and Virginia.

adopted one or more elements of branching, providing additional instructions in case IV lines cannot be established, drugs do not cause unconsciousness or death, or an IV line fails. Three of these states—Arizona, Idaho, and Oklahoma—include a contingency procedure to revive the inmate in case they go into cardiac arrest. In this way, protocols provide executioners with specific methods to address various issues as they arise. Further, by acknowledging many possibilities, states ensure that fewer events fall outside the purview of lethal injection protocols. Problematic lethal injections are more difficult to critique.

Increases in specificity may help imbue lethal injection with legitimacy after problematic executions. In this way, states implicitly signal that lethal injection can be improved by better procedures and that they are committed to such improvement. Legal scholar Jody Madeira notes that mistakes have been normalized in the lethal injection paradigm: “Corrections has long explored execution methods through a ‘learning-by-doing’ process, and may interpret each botched execution as a unique event instead of a patterned consequence of haphazard lethal injection reform.”

Madeira, supra note 123, at 98.

By amending their procedures, states treat lethal injection mishaps as anomalies—wrongs that can be righted with procedural tweaks.

The recent history of lethal injection echoes the longer history of the death penalty. When states encountered problems with their previous methods of execution, they first attempted to address these problems by tinkering with their existing 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 from public view.

In the 18th-century, this secrecy took the form of hoods placed over the inmate's head to hide their contortions. With the advent of the electric chair in 1890, it took the form of midnight executions conducted deep behind the walls of state prisons. Richard C. Dieter, Methods of Execution and Their Effect on the Use of the Death Penalty in the United States Symposium: The Lethal Injection Debate: Law and Science. 35 Fordham Urb. L.J. 789, 791 (2008).

Our glimpse into the death chamber—aided by newspaper articles, independent investigations, and court documents—reveals that procedural changes have done little to make lethal injection more humane.

According to S. E. Smith, states tend to implement “minor reforms” after botches (2009).

Some states have 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 made the firing squad, electrocution, or lethal gas backup methods of execution, and the federal government joined them in 2020.

James C. Feldman, Nothing Less than the Dignity of Man: The Eighth Amendment and State Efforts to Reinstitute Traditional Methods of Execution, 90 Wash. L. Rev. 1313 (2015); Maurice Chammah, Andrew Cohen & Eli Hagar, After Lethal Injection, The Marshall Project, (June 1, 2015), https://www.themarshallproject.org/2015/06/01/after-lethal-injection.

Yet, perhaps the recent actions of Ohio Governor Mike Dewine shed particular light on the fate of lethal injection. On December 8, 2020 Dewine announced an “unofficial moratorium” on his state's death penalty.

Joseph Choi, DeWine Says Lethal Injection ‘impossible’ Option for Ohio Executions, The Hill, (Dec. 8, 2020), https://thehill.com/homenews/state-watch/529306-dewine-says-lethal-injection-impossible-option-for-ohio-executions.

Some scholars argue that the evolution of America's methods of execution is a story of progress.

Sarat, supra note 97; David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition 183 (2010).