By: Sarah Fisher
The State of Arizona has executed 100 individuals since 1910, using methods such as electrocution, firing squad, and hanging. Beginning in 1977, most states adopted lethal injection as the primary method of execution, with many believing it to be a more humane and cost-effective alternative. However, the most current figures show that approximately seven percent of lethal injections are botched, i.e., improperly administered, resulting in unnecessary pain and suffering for the prisoner. These botched injections are due in large part to the incompetence of the executioner. Mainly, their miscalculation of the drug quantities required to perform the execution properly.
In 2008, the Supreme Court decided Baez v. Rees, which expanded the constitutionality of execution by lethal injection in response Kentucky’s execution protocols. At the time, Kentucky, and most other states, used a series of three drugs to perform an execution: an anesthetic, a paralytic agent, and one to stop the heart. Petitioners argued that if the first drug of the three, the anesthetic, is administered incorrectly then the execution would be cruel and unusual in violation of the Eighth Amendment. In this scenario, prisoners would be paralyzed for hours while they slowly felt the lethal drugs take effect. In the “ideal” scenario, a lethal injection procedure is approximately “14 minutes of pain and horror.”
The Court held that a method of execution only violates the Eighth Amendment prohibition of cruel and unusual punishment if the method creates an intolerable risk of harm that is cruel and unusual. In the majority opinion, Chief Justice Roberts stated that “an isolated mishap alone does not give rise to an Eighth Amendment violation” because it does not indicate the presence of cruelty or that the procedure presents a “substantial risk of serious harm.” The history of executions and the rate of botched injections since 2008, strongly suggest the presence of a substantial risk of harm.
In 2014, Arizona executed Joseph Wood by lethal injection following his homicide conviction ten years earlier. The execution lasted nearly two hours, during which time Mr. Wood continuously gasped for air after being injected with fifteen doses of a scarcely used concoction of drugs. Officials overseeing the execution indicated that they used a mixture of midazolam and hydromorphone. Ohio is the only other state to use this specific combination of drugs, which has also resulted in prolonged and agonizing pain for the prisoner. Additionally, the seven other states that have used midazolam in some other combination have all seen instances of repeated gasping and convulsing.
During the two-hour execution, Mr. Wood’s attorneys spoke with Chief Justice Roberts and three state Supreme Court justices in hopes of staying the execution and triggering the lifesaving procedures outlined in Arizona’s execution protocol, but both attempts were futile. Public outcry led to a formal review of Arizona’s Department of Corrections execution process, which ultimately resulted in terminating the use of midazolam and an ongoing abeyance of executions.
Not to be deterred by an “isolated mishap,” Arizona is accelerating into a new wave of capital punishment. However, despite its gusto, Arizona has found it increasingly difficult to secure the lethal drugs necessary for execution, as pharmaceutical companies have banned their products from use in executions. As a solution, the Department of Corrections has instead purchased the same chemicals that were used in Nazi concentration camps and has refurbished the previously abandoned gas chambers. The last person to be executed by lethal gas in Arizona was Walter LeGrand in 1999. An eyewitness at the time reported that the execution lasted eighteen minutes, during which LeGrand displayed “agonizing choking and gagging.” The defense for Mr. LeGrand selected lethal gas as the preferred method in hopes that it would be ruled unconstitutional under the Eighth Amendment, but that tactic proved fruitless. To date, the United States Supreme Court has not declared any method of execution to be unconstitutional.
Arizona is not alone in its departure from lethal injections. Between widespread unavailability of lethal injection drugs and controversies surrounding the intravenous method, states have resorted to more primitive ways of carrying out executions. Beginning in 2018, electrocution has seen a steady increase in use. In Tennessee, two inmates selected this as their preferred method of execution, viewing it as a more humane alternative to lethal injection. All electrocutions since 2018 have been in Tennessee, most recently in February, 2020.
The increasing number of botched lethal injections are no longer properly characterized as unfortunate, faultless, and isolated incidents. In July of 2021, the Arizona Supreme Court stayed the executions of two inmates scheduled for September of the same year. The Court stated that executions will be halted until more testing can be done on alternative drug combinations. However, if Arizona continues with its plan to reinstate death by lethal gas, the potential for an Eighth Amendment challenge is ripe. The Supreme Court in Baez stated that for a method to rise to the level of cruel and unusual punishment, it must present a “substantial” or “objectively intolerable” risk of serious harm. Although each method of execution harms the prisoner in unimaginable ways, a fact the Court fails to recognize, it may finally be forced to draw a line if Arizona’s plan persists.
Sarah is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. After passing the bar, she hopes to work in criminal defense. Within the topic of social justice, her interests include criminal justice reform, wrongful convictions, and advocating against capital punishment. Outside of the law, Sarah enjoys back country camping, trying (and mostly failing at) new recipes, and overindulging in political podcasts.