Another Botched Execution in Arizona Calls into Question Ethics of Capital Punishment

Posted Aug. 6, 2014

MP3 Interview with Deborah Denno, a professor of law at Fordham University School of Law, conducted by Melinda Tuhus

execution

Another horribly botched execution using lethal injection – this one in Arizona – has raised the controversy over the death penalty to a new level. On July 23, Joseph Wood III took two hours to die after he was injected with 15 times the normal dose of a drug that, in this case, was essentially administered as an experiment on a living human being. After controversy erupted nationwide about Wood’s botched execution, Arizona imposed a moratorium on all pending death sentences.

Thirty-two states, plus the federal government and the U.S. military, still employ the death penalty, and lethal injection is the preferred method in all death penalty states. Other methods of execution in use in some states include hanging, electrocution and the gas chamber, and, in Utah, firing squad. Between The Lines’ Melinda Tuhus spoke with Deborah Denno, professor of law at Fordham University School of Law and an authority on execution methods. She says that due to shortages of lethal drugs used for executions, some banned for export to the U.S. by the European Union, states have been experimenting with different drugs and dosages. Denno reviews some of the history and ethics of lethal injections used in executions and efforts to improve or end it.

DEBORAH DENNO: We find ourselves in the position of experimenting on death row inmates in the context of history. I mean, lethal injection was first enacted in this country in 1977; the first lethal injection execution took place in 1982, So we've had this problematic execution method around for decades, and there have been botches and problems for decades. So essentially, departments of correction are stuck using drugs that are experimental, that have never been used in the execution process, and that are really not as equipped as the drugs they used to use.

BETWEEN THE LINES: Didn't states turn to lethal injection because it was supposed to be more humane? Is that the real reason?

DEBORAH DENNO: That's right. I mean, we have five different methods of execution on the books in the U.S. States started turning to lethal injection because it was supposed to be the most humane. We find that that's not the case; it could be one of the worst methods, because of all the problems associated with it. Number one, the original three-drug protocol that was created in 1977 in this country and basically used exclusively until about 2009 included a paralytic agent that prevented inmates from moving or crying out, essentially, so this sort of peaceful-looking execution process was really part and parcel due to the fact that these inmates were paralyzed and could not cry out, and it was the use of this paralytic agent that got the Supreme Court to start looking at lethal injections as a constitutional issue in 2008.

That said, many of the most recent executions aren't involving this paralytic, because it's proven problematic. Many of them are showing distress. It's always been unclear exactly what inmates are experiencing; you need independent review for that. So there are all sorts of different rationales. Regardless of whether they're experiencing pain, though, and even the experts can't always verify that – you can't interview these people after they die – we do know the execution process lasted ten times longer than it should – it was two hours in this last execution; it should last ten minutes. That's Number 1. Number 2, inmates should not be reacting physiologically reacting in the way that they are, with the 650 gulps of air and other signs of distress that clearly show something is going wrong, terribly wrong.

BETWEEN THE LINES: Deborah Denno, who exactly is administering these lethal drugs? Isn't that another problem, that they're not always the most well-trained individuals?

DEBORAH DENNO: That's right. One of the problems with the secrecy is we aren't sure who is administering these drugs. That is kept secret – the execution team. Some states will reveal some of the credentials of these team members, but many states don't, so you don't know where these people are coming from. Sometimes you do find out qualifications of these people after the fact. For example, we do know there have been medical doctors involved in even these very highly botched executions, that of Clayton Lockett in Oklahoma and Joseph Wood in this latest execution. There was a medical doctor on hand, however, we don't know what kind of role they take; we don't know what kind of credentials they have.

I did two nationwide surveys on execution protocols in every state that used the death penalty, one in 2001 and a follow-up survey in 2005. In my 2001 survey, I found in some states the states would take prison volunteers to conduct the execution, in other words, anyone who volunteered to participate. Other executioners were highly untrained. So, you know, there's a lot of variability,but mostly there's so much secrecy we don't know who's conducting these executions. In the Joseph Wood execution, for example, his lawyers had requested the credentials of the members of the execution team, and those credentials were not provided.

But at the time there was a possible concern that executions were going to be televised so states wanted an execution method that could look okay on film, and that certainly wasn't electrocution or hanging or even firing squad. So lethal injection came about in part for that reason, but number two, it was felt to be the most humane form. The feeling was you would execute people like you were putting to sleep animals. The problem is, it's a lot more complicated than putting to death animals, and a lot less regulated. There are drugs that have been used in lethal injections that you could not use on an animal.

BETWEEN THE LINES: What about legal challenges based on the cruel and unusual punishment element of the Constitution?

DEBORAH DENNO: The U.S. Supreme Court has looked at the constitutionality of any execution method just one time under the cruel and unusual punishment clause one time, and that was a lethal injection case that the Court took up and decided an opinion on in 2008, and the court said whatever the state of Kentucky was doing at that time with the three-drug protocol, it was constitutional. Of course, that three-drug protocol isn't being used much anymore, or really hasn't been used at all, because of the lack of sodium thiopentol.

BETWEEN THE LINES: In addition to issues around lethal injections, you said other factors that have led to a drop in executions include DNA testing to prove innocence, racial disparities in sentencing and executions, and errors in capital cases.

DEBORAH DENNO: I mean, all of these factors have snowballed together with the lethal injection problems, to suggest to jurors and departments of correction and states throughout the country that there are real problems here, and I think it's had an effect.

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