Photo: Mike Simons/Getty Images
Botched Executions Have Never Swayed Public Opinion. This Time Could Be Different.
capital punishment

Botched Executions Have Never Swayed Public Opinion. This Time Could Be Different.

By , , and Photo: Mike Simons/Getty Images

On Tuesday night, the state of Oklahoma took 43 agonizing minutes to execute Clayton Derrell Lockett by lethal injection. About ten minutes into the procedure, Lockett began to writhe and thrash. Prison officials pulled a curtain, hiding the scene from the witnesses. Twenty minutes later Corrections Department Director Robert Patton emerged and announced that he was “stopping the execution” after a “vein failure.” Lockett died minutes later at 7:06 of a “massive heart attack.”

Most of America’s executions proceed unnoticed, but what happened in Oklahoma has galvanized national attention and added a new chapter to America’s long history of botched executions. Our own recently completed, comprehensive study of executions from 1890 to 2010 reveals that 3 percent of all executions in the United States have been botched. That number is 7 percent of lethal injections, a rate higher than that of any other method of execution.

After the attention dies down, what significance will Lockett’s death have in the continuing national debate over capital punishment? Will it be a turning point or a quickly forgotten incident?

Over the course of the last century, botched executions have fueled movement from one execution method to another: Lethal injection purportedly represented the culmination of a trend towards the humanization of capital punishment, delivering death swiftly and peacefully in a thoroughly medicalized environment. Botched executions have never, however, posed a serious challenge to the continuing viability of death as a punishment. In both law and popular culture they have been dismissed as isolated accidents, aberrations, and as symptoms of a system that is merely temporarily “out of order,” not irrevocably flawed.

To be sure, death penalty opponents have often tried to capitalize on stories of botched executions and use them in their broader critiques of capital punishment. For example, more than one hundred years ago, on January 6, 1912, the state of Vermont bungled the hanging of Elroy Kent. As soon as the trap was sprung, the rope snapped and Kent fell to the ground, still fully conscious. The executioners hauled him up by the rope, wrapping it around the gallows. Kent dangled for 17 minutes before the attending physician pronounced him dead. Describing the incident as “unspeakable,” the Day Book of Chicago argued that the execution had been tantamount to “legal murder” and that the death penalty needed to be ended in order to make sure no such incidents ever occurred again.

More recently, not long after the state of Texas carried out the first execution by lethal injection in the United States in 1982, the first botched lethal injections began. On March 13, 1985, Texas attempted to execute Stephen Morin. Technicians struggled to place a catheter in Morin’s arm. While official witnesses looked on, the execution team poked and jabbed both arms and one of Morin’s legs for 45 minutes before finding a useable site to insert the catheter that would carry the lethal chemicals. Corrections officials blamed the problems on his previous drug use. 

Shortly after the Morin execution, an editorial ran in The Bergen Record describing his death and concluding that “drugs or gas, there’s no way to humanize a barbaric act” and that, as a result, the death penalty should be abolished. On May 14, 1990, The Times Daily of Florence, Alabama ran a cover story titled “Execution debate rages on” that opened with the story of Stephen Morin. The article quoted a death penalty opponent, who maintained that because “there is no such thing as a humane way to kill another person,” capital punishment should be ended.

And now, in the twenty-first century, abolitionists and editorialists continue to talk about botched executions, albeit largely to no avail. Following the 2009 botched execution of Romell Broom, the ACLU of Ohio demanded that state officials halt executions in the state. “With three botched executions in as many years,” counsel Carrie Davis stated, “it's clear that the state must stop and review the system entirely.” The group Ohioans to Stop Executions also asked the governor to suspend all executions and end capital punishment, claiming that “no amount of adjustment to the death penalty process” can achieve an “outcome absent of pain and suffering” for all involved. 

But the outcry from death penalty abolitionists has been perennially drowned out by commentary that treats botched executions as unfortunate mishaps, not systemic injustices. Thus The New York Times, in its coverage of the Kent execution, said simplyand somewhat inaccurately“Accident Mars Vermont Execution, but Slayer of Girl Died Swiftly.” And almost one hundred years later, in the days following Broom’s execution attempt, Governor Ted Strickland told the media that he would review the “incident,” but also emphasized that, “That does not mean there will be a review of the larger issue of lethal injections or of the death penalty.” “That’s been settled,” he went on, “Obviously yesterday demonstrated that we have a problem with this particular set of circumstances not with the death penalty itself.” 

Despite the efforts of abolitionists and occasional sensationalized news coverage, there is little evidence that society as a whole has been deeply troubled by botched executions. As Robert Weisberg, law professor and director of the Stanford Criminal Justice Center, has observed “public opinion has been little affected by previous cases where executions were botched.”

But, beyond the headlines, what is crucial in assessing the political significance of Lockett’s botched execution is the context in which it occurred. Today the death penalty itself seems to be in decline. States such as New Jersey, New Mexico, Connecticut, Illinois, and Maryland all recently abolished capital punishment, and serious legislative debate about abolition is ongoing in Delaware, Kansas, Kentucky, Nebraska, South Dakota, and Washington, among others. 

 

Public support for the death penalty, while still high, is falling. In addition, the number of death sentences imposed by American courts has fallen steadily over the last two decades from a high of 315 in 1996 to only 80 in 2013. Likewise, the number of executions, after peaking at 98 in 1999, dropped to just 39 last year. Partially due to the increasing popularity of life without parole and a rash of death row exonerations, use of the death penalty has diminished to the point that only 15 states handed down a death sentence in 2013.

In this environment the failures of lethal injection may assume greater significance, offering an important additional reason for the American public and our political leaders to question whether we should continue to use the death penalty. As Americans worry about the risk of executing the innocent and the extraordinarily high financial cost of executions, and as state legislatures consider abolition, Clayton Lockett’s botched execution offers further evidence of the wisdom of Justice Harry Blackmun’s admonition that we should no longer “tinker with the machinery of death.”

Austin Sarat, associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, is the author of “Gruesome Spectacles: Botched Executions and America’s Death Penalty” (Stanford University Press).

Robert Henry Weaver is currently employed as a paralegal in the office of the Manhattan District Attorney.

Heather Richard is a paralegal at Sullivan & Cromwell LLP in downtown Manhattan.

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