By: Madison Benson
The arguments against the death penalty are numerous and diverse. There are issues of race. For example, since the reinstatement of the death penalty in 1976, 301 Black men have been executed for the murder of white victims, 178 Black men have been executed for the murder of Black victims, and 12 Black men have been executed for the murder of both Black and white victims. Also, after reinstatement of the death penalty, 14 white men have been executed for crimes against Black or Latina women, but 487 white men have been executed for crimes where at least one victim was a white woman. There are issues of gender: of the 1,537 executions since 1976, 864 were male defendants convicted of murdering female victims and 13 were women convicted of murdering male victims. There could be more issues that the statistics do not show, as the FBI chooses not to track information about the sexual orientation or gender identity of victims. There are also issues of mental illness and intellectual disabilities, as was discussed in cases such as Atkins v. Virginia and Hall v. Florida. However, recent coverage of “botched” executions has drawn the public’s attention to yet another issue stemming from capital punishment: method.
Numerous methods of execution have been tried and adopted over the years. Early on, hanging was the primary method of execution, and executioners took steps to ensure the death was as quick as possible. In the late 1800s, the first person was executed via electric chair. Thought to be more humane than hanging, a person is shaved, strapped to a chair, blindfolded (so the witnesses do not see the eyes pop out), and then electrocuted at high voltage for 30-second increments until they die. Other bodily reactions can also occur, such as skin swelling and splitting from pressure, the dispelling of bodily fluids, and occasionally the person can catch fire during the process. Starting in the 1920s, execution by gas chamber became a common alternative and was seen by some as a “more humane” method. However, evidence shows that this method was likely just as, if not more, painful as the other methods. The person being executed via cyanide gas chamber dies because their brain is deprived of oxygen and the pain and anxiety is described as being comparable to having a heart attack. Now, most jurisdictions use lethal injection as the primary means of executionand all thirty-two jurisdictions who have the death penalty have it as an option. This method is essentially a medical procedure, but doctors are forbidden from administering the drugs, so the injections are not always performed by medical professionals. In several cases, the executioner struggled to find veins, leaving the person with multiple puncture marks. In other cases, the person has visibly struggled to breathe and clearly suffered pain during the process. In 2014, Clayton Lockett was conscious when the drugs which would kill him were administered in the Oklahoma prison. As a result, Lockett began writhing in pain after the injection and was not pronounced dead for forty-three minutes. In 2014, Joseph Wood III gasped for air for nearly two hours before he was pronounced dead in Arizona. Just weeks ago, in October 2021, John Marion Grant vomited and convulsed for several minutes after the first injection during his execution in Oklahoma.
The one thing which connects the development and adoption of each new method of execution is the desire for a “more humane” way to kill the prisoner. Yet, each method seems to cause more pain, take more time, and have more instances of errors than the last. This is evident in the rates of botched executions for each method. A botched execution is an execution in which there is a departure from protocol for that method. The only method with no record of botched executions is firing squad, which is not the primary method for any state and is only authorized for use in three states (Mississippi, Oklahoma, and Utah). Electrocution has the next-lowest botch rate at 1.92% of executions, but keep in mind that the prisoner’s eyes popping from their skull and their skin receiving third-degree burns are not considered to be “departures from protocol”. Only nine states allow execution by electrocution, and only four of those states allow the person being executed to choose electrocution (in the other states, it is only a backup when other methods are unavailable). Hanging has a botch rate of 3.12% but only Washington allows the inmate to choose hanging over other methods and New Hampshire allows hanging only if lethal injection is unavailable. The gas chamber, which is authorized in four states, has a botch rate of 5.4%. The only method authorized in all jurisdictions (thirty-two states plus the federal government and military) is lethal injection. In the majority of those jurisdictions, lethal injection is either the primary or sole method of execution. Lethal injection also has the highest rate of “botched” executions at 7.12% of executions.
Is the development and use of these new methods really for the purpose of facilitating more “humane” executions? No. If the primary goal of choosing a method was to pick the one which was the most merciful, then no jurisdiction would continue to use lethal injection. In addition to issues with obtaining the lethal drugs, there is clear evidence that lethal injection is more likely to be botched, and those botches can result in extensive, extreme pain. Jurisdictions have chosen these new methods for the same reason they placed bags or blindfolds on those subject to the electric chair: for the sake of those watching. When authorities know that the method they choose is actually more likely to cause pain to the inmate, and they choose it anyway, it sends a clear signal as to their priorities. When Ronnie Lee Gardner was executed by firing squad in Utah in 2010 (only the third person to be executed using this method after 1977), his choice gained international attention. Many criticized the method as barbaric and “Wild West-style justice.” Although Gardner did not explicitly state why he chose firing squad, some who knew him or his victims claimed that he probably chose it for its violent nature. The fiancé of one of Gardner’s victims stated that he may have chosen the method “to make a point” because “firing squad makes it more real what’s happening than lethal injection does.” Perhaps she is right, or perhaps Gardner heard about the numerous cases where executioners struggled to find veins, in one case for over two hours, and decided to choose an option which would take less time and not involve him helping those trying to kill him find a suitable vein. While Gardner’s execution may seem brutal and barbaric to some, it is improbable to think he physically suffered as much as Clayton Lockett and Joseph Wood III. If the concern was really to guarantee the quickest and least painful death, if the concern was really for the “comfort” of the person being executed, then perhaps the optimal choice would be one which the U.S. has never adopted: the guillotine. This method takes approximately half a second from the time the blade is released to the death of the prisoner. The guillotine is undeniably a bloody method which is probably unbearable for most people to watch, but it is also undeniably more effective and “humane” than lethal injection. When you compare half a second to the two hours that Wood suffered, gasping for air, how can you come to any other conclusion?
Lethal injection feels less violent than firing squad, hanging, or the guillotine. The idea of a person dying by falling asleep on a medical table sounds less horrifying than being shot to death or having their spinal cord snapped by a rope, but it simply is not reality. The continued use of lethal injection despite its horrors proves only that the concern is for the people carrying out the execution and those who come to watch. Perhaps fewer people would continue to support the death penalty if the methods were as bloody as firing squad and guillotine. Perhaps this is all evidence that there is truly no way to make capital punishment anything less than painful and terrifying, anything less than cruel and unusual. One thing is clear: lethal injection is not used for the better of the person being executed, but to help keep clear the consciences of those ordering and supporting the executions.
Madison (she/her) graduated from Arizona State University with a B.A. in Communication and a minor in Spanish Language Studies. She is currently a 2L at Sandra Day O’Connor College of Law and she plans on working in criminal law after passing the bar exam. Her interests within the topic of social justice include gender and bodily autonomy, criminal justice, and the death penalty.
Law Journal for Social Justice 