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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.
A Jeannie Nuss, Arkansas Turns to Different Lethal Injection Drug, AP N A
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,
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, Previous midazolam executions had been botched and riddled with mishaps. The Associated Press,
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,
When they arrived, investigators found Lacy in a closet tied to an office chair.
Rolly Hoyt, Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (Ak. Sup. Ct. 1997).
More than two decades after the sentencing, guards steered the wheelchair-bound Jack Jones
He developed diabetes in prison and had a leg amputated. Andrew DeMillo & Kelly P. Kissel,
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, Besson, Hammersly & Moritz,
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.”
DeMillo & Kissel, Kelly P. Kissel,
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, John Moritz,
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, Fiona Keating, Jacob Rosenberg, Kissel, Keating,
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, Olivia Messer, Ferrando & Barger, Liliana Segura,
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. Pilkington, Lartey & Rosenberg, Segura,
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,
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, McCausland,
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,
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.
In July 1976, the Supreme Court ended a four-year de facto moratorium on the death penalty when it announced its decision in the landmark case 428 U.S. 153 (1976). Von Russell Creel,
Responding to this situation, State Senator Bill Dawson and State Representative Bill Wiseman proposed that the state adopt a new method of execution: lethal injection. Though New York State first considered adopting lethal injection in 1888, the method had never been used to execute an inmate in the United States or elsewhere.
E Vince Bieser,
For advice about which drugs might be used, they reached out to the Oklahoma Medical Association which refused to help for fear of possibly violating medical ethics. They had trouble enlisting help from other medical practitioners until they consulted A. Jay Chapman, Oklahoma's chief medical examiner. Later, Chapman described himself as “an expert in dead bodies but not an expert in getting them that way.”
Deborah W. Denno,
Believing that lethal injection would be less violent and gruesome than the electric chair, Chapman offered a blueprint for Oklahoma's lethal injection law: “an intravenous saline drip shall be started in the prisoner's arm, into which shall be introduced a lethal injection consisting of an ultrashort-acting barbiturate in combination with a chemical paralytic.”
The proposal to adopt lethal injection was very controversial among death penalty supporters. Some argued that making executions less gruesome and painful would weaken the death penalty's deterrent effect. Others said that it would prompt suicidal people to commit murders in hopes of dying painlessly via lethal injection.
During Oklahoma's legislative debate, State Senator Gene Stipe offered an amendment to limit the duration of lethal injections.
After extensive debate, the Oklahoma State Senate passed the lethal injection bill by a 26-20 vote. The House soon followed suit, 74-18. On May 11, 1977, the governor signed legislation making Oklahoma the first state to adopt lethal injection as its method of execution.
Initially, the state's new execution protocol called for the use of only two drugs: sodium thiopental, the “ultrashort-acting barbiturate” that would anesthetize the inmate, and pancuronium bromide, the “chemical paralytic” that would asphyxiate the inmate. Potassium chloride, the final piece of the traditional three-drug protocol that stops the heart, was added to the protocol four years later, before anyone was put to death by lethal injection. Oklahoma's lethal injection statute made no mention of a third drug.
Denno,
As Senator Dawson hoped, the new lethal injection law “put Oklahoma in one of those rare instances of being a pioneer.”
J
In Texas, other death penalty supporters worried that lethal injection provided an easy way out for criminals. They claimed that its supposed lack of pain and violence defeated the primary purpose of the death penalty—to deter future crimes. Underlying their objection to lethal injection was a belief that vicious murderers do not deserve to die painlessly or more humanely than their victims.
Death penalty opponents also objected to Texas's lethal injection bill, arguing that the death penalty is inhumane and cruel, regardless of the method used.
House Study Group Bill Analysis of HB 945 1977,
Despite these efforts, Texas became the second state to adopt lethal injection on May 12, 1977, one day after Oklahoma. Texas's statute was almost identical to Oklahoma's and did not name specific drugs.
James Welsh,
Death penalty states across the United States quickly followed Oklahoma and Texas in adopting lethal injection. Between 1977 and 1982, Idaho, New Mexico, Washington, and Massachusetts switched to lethal injection.
Idaho in 1978, New Mexico in 1979, Washington in 1981 and Massachusetts in 1982. According to the Death Penalty Information Center (“Execution Database” 2021), Idaho executed three inmates with lethal injection, New Mexico executed one, Washington executed five, and Massachusetts executed none.
In December 1982, Texas used its three drug lethal injection protocol for the first time in the execution of Charles Brooks Jr.
Dick Reavis, John G. Leyden,
Brooks's execution also did not live up to lethal injection's promise of a quick and humane death.
Reavis, Don Colburn, Reavis,
Despite these problems, states continued to adopt lethal injection, as shown in Figure 1. By the end of 1983, seven additional states—Arkansas, Illinois, Montana, Nevada, New Jersey, North Carolina, and Utah—had switched their execution method to lethal injection.
Deborah W. Denno,
Figure 1
Lethal Injection Adoption by State.
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 553 U.S. 35 (2008). Molly E. Grace,
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.”
This standard, promulgated by the plurality of the Court in
Just after Denno, The new protocol was the same as the one that Ralph Baze and Thomas Bowling had suggested in
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,
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, Sean Murphy, In general, we do not distinguish drug protocols that switch their second and third drugs for close analogues that have the same intended effect when injected. For example, states sometimes substitute vecuronium bromide or rocuronium bromide for pancuronium bromide, as is the case here. Besides a few exceptions, it is very difficult to determine exactly which second and third drugs a state used in a given execution since newspapers commonly report the first drug but not the others. Furthermore, execution procedures often allow many choices between second and third drugs.
With American supply chains cut off, some states turned to European drug companies.
Raymond Bonner, Mary D. Fan, James Gibson & Corinna Barrett Lain,
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. Administrative documents allowed for even more novel drug combinations, like midazolam and hydromorphone, as backups.
Drug protocols used between 2010 and 2013.
| Ohio, Washington | Texas, Louisiana, Oklahoma, Florida, Mississippi, Virginia, Alabama, Georgia, Arizona | |
| Ohio, Arizona, Idaho, Texas, South Dakota, Georgia, Missouri | Oklahoma, Texas, South Carolina, Mississippi, Alabama, Arizona, Georgia, Delaware, Virginia, Florida, Idaho |
However, the switch to pentobarbital did not alleviate supply pressures.
David Jolly,
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, Bill Cotterell,
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” (
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,
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,
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. Sometimes, as in the case of Romell Broom, not even death is guaranteed; Broom v. Jenkins, No. 1:10CV2058, 2019 WL 1299846 (N.D. Ohio Mar. 21, 2019).
Figure 2
Protocol type by year of use.
Classification of lethal injection drug protocols.
| Classification | Characteristics | Examples |
|---|---|---|
| Barbiturate combination | Sodium thiopental or pentobarbital in combination with a paralytic and a heart-stopper | Sodium thiopental, pancuronium bromide, and potassium chloride |
| Barbiturate overdose | Sodium thiopental or pentobarbital on their own | Sodium thiopental alone |
| Sedative combination | Midazolam, etomidate, or diazepam in combination with other drugs | Midazolam and hydromorphone |
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.
A
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. Jeffrey E. Stern,
In 1999, when he was 23, Lockett beat and raped a group of young women before shooting and killing one of them.
Ziva Branstetter, Jaime Fuller,
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,
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,
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,
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,
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” Even before increases, lethal injection protocols already used dosages far beyond what doctors had ever used therapeutically. Dosage increases have made it harder to evaluate and understand the effects of these drugs, introducing more uncertainty into lethal injection. Outside of America's execution chambers, no one has studied what happens when you inject someone with 500 mg of midazolam.
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 ( For example, after Nebraska killed Carey Moore with a four-drug diazepam and fentanyl combination, his face was “darker purple” and “mottled.” Paul Hammel, One such botch occurred in 2018 when Tennessee put Billy Irick to death. More than 30 years earlier, Irick was found guilty of the rape of a seven-year-old girl. After officials injected midazolam into his veins, he began to “gulp[] for an extended period of time,” choke, gasp, cough, and snore. A witness said that he moved his stomach, moved his head, and “briefly strain[ed] his forearms against the restraints” (Steven Hale,
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, Many court cases that involve evaluating midazolam contain disagreement between medical experts. Examples include S
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, Fifty-one of the executions we examined contained mishaps that suggest those inmates suffered from pulmonary edema. Mishaps that we took to possibly indicate pulmonary edema were gurgling and gasping, two uncommon breathing changes that doctors identified as possible signs. Since the paralytics prevent some of these signs from showing themselves to outside observers, our count only includes inmates who suffered pulmonary edema while still able to breathe, which accounts for the discrepancy between our count and NPR's. Pulmonary edema, like the burning sensation connected to high-dosage injections, is central to recent legal challenges to lethal injection. In Ohio's consolidated case, experts for the plaintiffs drew upon autopsy reports from past executions as well as a detailed understanding of how midazolam works inside the body to argue that pulmonary edema satisfied what the court called “the first prong of
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. S
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. We found that executions between 2010 and 2020 which used a barbiturate combination lasted 10.4 minutes on average; barbiturate overdoses lasted 16.8 minutes; sedative combinations lasted 20.7 minutes.
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
Average duration of lethal injections by year.
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
How long after injection does an inmate remain alive?
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, We investigated protocol changes throughout the decade by collecting as many of the documents as we could. To do this, we filed Freedom of Information Act requests with the department of corrections in all states that had the death penalty within the studied time period. Some states (including Delaware, Louisiana, South Carolina, and Wyoming) denied these requests, and most states provided information with information redacted. To supplement our protocol database, we contacted Assistant Federal Public Defender Jennifer Moreno, who provided us with many protocols. Moreno formerly worked at the Berkeley Law School Lethal Injection Project. The claims we make are limited in scope because secrecy measures restrict our ability to create an exhaustive database.
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. 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. 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
Branching in Ohio's lethal injection procedure.
At least 14 states
These states are Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Kentucky, Missouri, Nebraska, Ohio, Oklahoma, Tennessee, and Virginia.
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,
At the same time as they dealt with mishaps by adding specific checks to their procedures, death penalty states have attempted to obscure the perception of mishaps by hiding executions, and information related to executions, from public view. According to the Death Penalty Information Center, of the 17 states that carried out executions between 2011 and 2018, 14 prevented witnesses from seeing at least one part of the execution, 15 prevented witnesses from hearing the sounds of the execution, and 16 concealed the source of the drugs used.
In addition to using new drugs over the last decade, states also searched for new sources of drugs. With major manufacturers unwilling to provide lethal injection drugs, states turned to compounding pharmacies. Compounding pharmacies make drugs in small batches and are not subject to strict regulation. In 2018, at least ten states sourced their drugs from compounding pharmacies. On occasion, states have stopped all executions because pharmacies provided contaminated drugs, and state inspectors have found that compounding pharmacies often adopt unsafe and unsanitary practices. In order to shield compounding pharmacies from public pressure to stop supplying lethal injection drugs, many states have enacted secrecy statutes to conceal their identity. Barri Dean, Robin Konrad, However, scholars, lawyers, journalists and advocates are beginning to push back on secrecy statutes. According to Deborah Denno, secrecy statutes “[make] it difficult—if not impossible—to evaluate the constitutionality of lethal injection.” Denno,
Another way states have adapted to mishaps is to make their protocols less specific at certain points during their executions. They have introduced greater ambiguity in the language governing crucial parts of their protocols. For example, even as states have added more checks to ensure that IVs are working, they have allowed executioners to attempt to set lines for longer periods of time and in more places.
States also have added ambiguity in execution length. No state procedures now specify a maximum time that should pass between injection and death. As a result, lethal injection's critics cannot point to a specific regulation in order to hold states accountable for long and painful executions.
In fact, the refusal of courts or legislatures to impose time constraints on executions has been integral to lethal injection's survival.
In January 2014, a quarter-century after Dennis McGuire brutally raped and killed 8-month pregnant Joy Stewart, it took roughly 25 minutes for Ohio to kill him. It was the longest of the 53 executions Ohio had conducted since it resumed lethal injection in 1999. For 10 minutes, McGuire intermittently gasped and snorted for air. Southern Ohio Correctional Facility warden Donald Morgan wrote, immediately after overseeing the execution, “The process worked very well.” Later in the month, upon reviewing the lethal injection as per standard procedure, special assistant Joseph Andrews found that everything in the execution went according to plan. Advocates called for a moratorium on the death penalty, in vain. Josh Sweigart, 519 S.W.3d 550 (Tenn. 2017).
States have made it hard to say when mishaps occur by explicitly or implicitly authorizing officials to exercise discretion. Thus states have set extremely broad expectations about how long the IV insertion is supposed to take. In 2017, Kentucky provided a one-hour window for the process before an execution must be stopped.
In 2011, Delaware also allowed one hour. In 2014, Louisiana allowed one hour.
While protocols previously limited IV insertion site options to minimize pain, they have come to allow for a wider array of sites. After 2010 eight states
These states are Arkansas, Delaware, Florida, Idaho, Kentucky, Louisiana, Oklahoma, and South Dakota. Alabama, Arizona, Georgia, Indiana, Missouri, Nebraska, Nevada, North Carolina, Pennsylvania, Texas, Utah, Virginia, and Washington. Alabama, Florida, Indiana, and Oklahoma. The invasive surgery, in which officials place a central venous line by cutting away the inmate's flesh, has fallen out of favor in the medical community. Most central lines are placed today via the Seldinger technique (a safety enhancement over the previous ‘cut-down’ technique: Ari D. Leib, Bryan S. England & John Kiel, Idaho, Kentucky, Louisiana and Mississippi.
Discretion is also frequently granted when the dosage prescribed by a protocol is insufficient to kill. At least 19 states’ protocols
The 19 states are Alabama, Arkansas, California, Delaware, Florida, Georgia, Idaho, Kentucky, Missouri, Nebraska, North Carolina, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington. The 13 states are Alabama, Arkansas, Florida, Georgia, Idaho, Missouri, Nebraska, North Carolina, Ohio, Tennessee, Texas, Virginia, and Washington. Oklahoma has prescribed 5 minutes; California, Delaware, South Dakota, and Utah have prescribed 10 minutes; Kentucky has prescribed 20.
Moreover, states have increasingly left the choice of drugs for any particular execution to the warden overseeing an execution. At least 14 death penalty states
These states are Arizona, California, Delaware, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, and Washington. In January 2014, Ohio was unable to obtain pentobarbital for its preferred protocol and instead drew on its menu of options, selecting a novel combination of midazolam and another sedative, hydromorphone, to kill Dennis McGuire. In July, Arizona encountered a pentobarbital shortage and for the execution of Joseph Wood turned to midazolam and hydromorphone as well. McGuire and Wood's executions lasted 24 and 117 minutes respectively, and were widely recognized as botches.
Ambiguity and discretion provide executioners with a kind of blank check that brings lingering, fraught deaths into the fold of acceptable executions. Ambiguous language allows officials to elide details and avoid the specific provisions that once protected inmates from painful procedures or long executions. The discretion that protocols now allow means that executioners have wide latitude to modify execution procedures. Executioners can do what they deem necessary to kill an inmate--while acting within the authority grated by the state.
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,
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). Denno, This assertion is backed by scholars like Madeira. Madeira states that “rapid innovation also intensifies organizational stress, increasing the likelihood of the very mistakes that reforms purportedly reduce” and as a result, “capital punishment by lethal injection is characterized by frequent reform and, as a result, has become engulfed in a “culture of mistake” (Madeira,
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,
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,
Some scholars argue that the evolution of America's methods of execution is a story of progress.
S Dieter,
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Classification of lethal injection drug protocols.
| Classification | Characteristics | Examples |
|---|---|---|
| Barbiturate combination | Sodium thiopental or pentobarbital in combination with a paralytic and a heart-stopper | Sodium thiopental, pancuronium bromide, and potassium chloride |
| Barbiturate overdose | Sodium thiopental or pentobarbital on their own | Sodium thiopental alone |
| Sedative combination | Midazolam, etomidate, or diazepam in combination with other drugs | Midazolam and hydromorphone |
Drug protocols used between 2010 and 2013.
| Ohio, Washington | Texas, Louisiana, Oklahoma, Florida, Mississippi, Virginia, Alabama, Georgia, Arizona | |
| Ohio, Arizona, Idaho, Texas, South Dakota, Georgia, Missouri | Oklahoma, Texas, South Carolina, Mississippi, Alabama, Arizona, Georgia, Delaware, Virginia, Florida, Idaho |