In 1790, Thomas Bird became the first person to be executed under the United States Constitution. Bird was convicted of murder and piracy, and the total cost of his hanging was five dollars and fifty cents (for the construction of a gallows and a coffin). Since then, the U.S. state and federal governments have executed thousands of people by hanging, firing squad, electric chair, lethal gas, and lethal injection. The map below illustrates the progression of death penalty execution methods by state since the beginning in the late nineteenth century.1 The Supreme Court effectively put executions on hiatus in its 1972 Furman v. Georgia decision, but states immediately began working around the ruling and the Court reinstated the death penalty in 1976’s Gregg v. Georgia decision.
By 2009, all death-penalty states had made lethal injection the sole or primary execution method for death row inmates, despite problems with the method that have been evident since the 1950s. Now, the death penalty is transforming once again, due to a shortage in the drug used in the three-drug protocol to paralyze the inmate during his execution. As a result, states have resorted to hunting for a replacement in unusual places, such as domestic compounding pharmacies. Some have changed their protocols to use just one drug, or tried to replace the missing drug with new drugs. Others have put executions on hold. In states such as Louisiana, Tennessee, and Wyoming, there’s even been talk of reintroducing the electric chair. This has led to a spate of ethical problems and legal challenges.
I spoke with Dr. Deborah Denno, professor at Fordham University School of Law, about the problems with lethal injection and how they fit into the death penalty’s broader history.
Lane Florsheim: Your paper “Lethal Injection Secrecy Post-Baze” catalogs the numerous issues with lethal injection as an execution method. Are the drawbacks of lethal injection at odds with the public’s perception of the method?
Dr. Deborah Denno: I think the public is becoming more educated about the drawbacks of the method, because there’s been so much media coverage about these lethal injection challenges. That said, I still think there’s quite a bit of public ignorance about all the problems associated with lethal injection. Most people are used to seeing these pictures of an inmate serenely on a gurney, looking like the inmate’s going to sleep. I think that for the most part that might be the larger public perception. And we all know, that person is paralyzed, at least the people who are sort of ensconced in this issue. It’s hard to know, but I think that might still be the overwhelming public perception.
LF: Why do states that have seemingly prioritized finding a “humane” execution method for more than a century take measures to conceal problems with lethal injection like non-traditional drug sources and shifting protocols?
DD: Because what they’re doing actually conflicts very much with the effort to find a humane method of execution. I mean, it’s a catch 22. The more information states reveal about what they’re actually doing, the more we find that what they’re doing contradicts the search for a humane method of execution. The secrecy is very much justified [to them] by real ignorance and problems with the procedure. As far as I can tell, every time they reveal information, they’re just revealing all the problems and the ignorance that’s associated with their efforts to inflict these penalties. Otherwise, why be secret about it?
LF: Does that catch 22 also describe states’ decisions to switch from hanging to electrocution and then from electrocution to lethal gas as methods in the past?
DD: It is a catch 22, but historically, I think the switch from hanging to electrocution [was] probably the most sincere and at least seemingly earnest attempt in this country to really find a humane method of execution. New York state spent over a year analyzing and researching what might be the best method of execution. At that time, the governor of New York appointed a commission of three people who he thought really knew about methods of execution, and who had an expertise. They were appointed to look for the best method of execution in the world. And they did that, and they wrote up a report. They had a very long report looking at every method in the world. So the seriousness and the slowness suggested this was a really earnest way to try to find a method of execution that was going work.
That said, it was also very much tainted with politics and a fight between George Westinghouse and Thomas Edison on what current was going to be used in the electric chair . Nonetheless, at least there was a concerted attempt—they took a year off, they were working, they had a commission. We’ve never done that since.
After that, though, it was pretty much fueled with politics. There’s been some element of sincerity [in all of these efforts], even though that apparent sincerity might have been fueled by the desire to continue with the death penalty and to execute people. There have been strands of working hard at a humane method of execution; it’s just been tainted with all these other motivations as well, in addition to a real ignorance about what people are doing. And a conflict with the fact that these are punishments; this is not people being operated on or being executed in a hospital setting or something like that.
LF: Botched executions that have taken place with contaminated or untested drugs have meant that an inmate in Ohio died gasping and choking, and one in Oklahoma cried out that he could feel his “whole body burning” after he was injected. In light of these incidents, do you think death penalty states will continue to use lethal injection to kill death row inmates?
DD: You know, I always have trouble predicting where this is all going to go, so I don’t. Because who would have predicted we would have had a drug shortage in this country, and who would have predicted that we would go to Europe to buy our drugs because we couldn’t buy them here, and then who would have predicted that the European countries would stop selling to us and that we would be doing all the things we’ve been doing in the last five years? That just wasn’t foreseeable. So I’m a little bit gun-shy on trying to predict what states are going to do.
LF: Do you think there’s a way to reform lethal injection procedure to make it more humane, or would that be pretty much impossible?
DD: I think that we should go back to what we did in 1889 and appoint a commission of people who are experts in this area: people who work with these drugs, as well as people who work in the prison setting, and have them come up with the best method of executing someone and take a year off and really talk about it and slow down and get some expertise.
This is what the UK did, as well. They wrote a 500-page report on the death penalty in the country, and not just the execution methods, but all parts of it—the innocence, the race issues, that fact that many of these inmates don’t have adequate counsel, socioeconomic status, gender differences—all of these issues. This is something that the UK just took a sabbatical [on] and really sat down and analyzed their entire death penalty process.
If I could add one thing, this has been going on for decades and decades. It’s just reflective of a very long problem, even though we’ve seen more recent instances of it; it’s been going on for a very long time.