JURIST Guest Columnist Brandon L. Garrett of the University of Virginia School of Law comments on the recent problems with botched lethal injections being administered for purposed of imposing the death penalty …

“We’re going to close the blinds temporarily,” the Oklahoma corrections officer told those in the witness room, when Clayton Lockett’s execution started to go terribly wrong. None of those outside could see what happened during the almost 45 minute-long botched execution, and the “shuttered blinds” became a metaphor for the modern administration of the death penalty. Behind the curtain, “unknown drugs” and “untested protocols” were used “behind a wall of secrecy,” said Lockett’s lawyer Cheryl Pilate. Challenges to such secret protocols have been brought in a range of states, including Georgia, Ohio, Oklahoma, Louisiana, Missouri and Texas; one federal judge in a recent dissent [PDF] argued the state cannot simply hide “behind the hangman’s cloak.” But following that botched execution the Oklahoma Court of Appeals approved a six-month stay of executions to at least review the matter.

Will we finally see what lies behind the hangman’s cloak? Some even suggest that we shouldn’t try. Boer Deng and Dahlia Lithwick, writing for Slate, make the provocative claim that it is death penalty opponents that have put states in a bind, with European companies refusing to supply the drugs used in executions, and doctors adopting the view that it violates the Hippocratic Oath to participate in capital punishment. Of course, the Eighth Amendment requires humane executions, whether or not the “market” can supply lethal drugs on the cheap. They also claim that lethal injection has “become more gruesome and violent in recent years.”

In fact, the death penalty has always been gruesome and violent. Read Austin Sarat’s new book, “Gruesome Spectacles” describing the history of botched executions in the US. Its release had an unintentionally macabre timing to it, what with Lockett’s execution. But as Sarat describes, this was nothing new. Whether it was hanging, electrocution, lethal gas, electricity and gas or lethal injection, state killing has never been able to guarantee “humane” process. Of course, the very notion is itself perverse, but let’s put that to one side momentarily. Even when we adopted “modern” methods to stop making executions gruesome and violent on purpose, no method has provided a technological “fix” to the problem.

Indeed, Oklahoma officials blamed Lockett’s botched execution on a “vein failure,” or to be more specific, they administered the IV through his groin, the line at some point became dislodged, and his “vein exploded.” Some people have smaller or hard to find veins, making for uncomfortable routine shots or blood tests—and for the condemned, horribly botched executions. The “best” and most instantly and painlessly lethal drugs in the world cannot solve that problem. Having restored access to the “three drug cocktail” from European companies would not solve the problem either. In fact, that combination was itself untested despite being “standard,” and itself may have caused paralysis that disguised deep suffering. That is why a recent bipartisan Constitution Project report recommends [PDF] use of one drug but also consultation with legitimate scientific experts.

Imagine the horrifying research that doctors of death would have to do to systematically analyze how to make executions fast and painless for each kind of body type and circumstance. If anything, as Sarat documents, botched executions have been more common, particularly in the past few decades, from 1980 to 2010. Some people didn’t conduct electricity well—leading to horrible botched executions where the condemned caught on fire, smoked or had to be jolted time and again. And now that lethal injections have taken the place of the chair, problems with lethal injections have been far from a symptom of recent difficulties getting ahold of drugs. There were fewer botched lethal injections in the 1980s (10) than in the 2000s (34). But that is because there were still quite a few electrocutions in the 1980s (and botched ones), and because there were not many executions themselves in the 1980s, while executions rose sharply by 2000 (and have been declining ever since).

Methods of execution have not gone “underground.” They have always been underground. No one is stopping executions from being conducted out in the open, with transparent drugs and protocols, video-cameras or attendance by the public. Given the taste of prior generations for watching intentionally gruesome executions, it is unlikely that more sunlight would mobilize more constructive attention to practice of capital punishment.

The death penalty is in a steep decline for other reasons: the fear that the death penalty is arbitrarily imposed; it is handed out in only certain states and counties and by certain prosecutors; it is inflected by race; criteria for deciding who is “death worthy” are vague; and it is used in high-stakes cases in which too many innocent people have been sent to death row. As I have described elsewhere [PDF], 18 death-row inmates have been exonerated by DNA, and in many of those cases it was sheer luck that there was biological evidence to test. Far more death-row inmates have been exonerated based on non-DNA evidence, as Samuel Gross and colleagues have recently described. We will never know how many innocent individuals never located such evidence, so were executed.

Stays of executions have become far more common in the past decade. Some have been prelude to abolition of capital punishment (Illinois, for example) while others have given states and the public some time to decide whether to try to fix it (Maryland) but then maybe abolish it (Maryland). The death penalty debate has focused in recent weeks on methods of execution, but whether that Oklahoma stay will lead to any constructive reforms is more doubtful.

We cannot get executions “down to a science,” and we never will. Not only is there no clean and humane way to carry out the executions themselves, as if such a thing made sense, but we certainly cannot get prosecutorial discretion down to a science, effective indigent representation down to a science, witness testimony down to a science, jury decisions down to a science or police investigations down to a science. Science may be able to improve some aspects of criminal casework, like forensic analysis, assessments of intellectual disability, interrogations and eyewitness identification procedures, but many jurisdictions have resisted such improvements, even (or especially) in death penalty cases. Unlike the Justices of the Supreme Court, whom Justice Robert Jackson famously called “infallible only because we are final,” the death penalty is final, but inescapably fallible.

Brandon L. Garrett is a professor of law at the University of Virginia School of Law who studies criminal procedure, corporate crime and wrongful convictions. His last book, “Convicting the Innocent,” was published in 2011, and his new book “Too Big to Jail: How Prosecutors Compromise with Corporations,” will be published by Harvard University Press later this year..

Suggested Citation: Brandon L. Garrett, Behind the Hangman’s Cloak, JURIST – Forum, May 15, 2014, http://jurist.org/forum/2014/04/brandon-garrett-hangmans-cloak.php