Lethal Injection and the False Promise of Human Execution

Author: Austin Sarat
Publisher: Stanford University Press, 2022.  194 pages.
Reviewer: Talia Roitberg Harmon | March 2023

Lethal Injection and the False Promise of Humane Execution chronicles a significant, comprehensive, and insightful analysis of the history and evolutionary process of lethal injection executions in the United States, as well as the false promise of the perceived humanity of this method of execution.  This ground-breaking book provides a thoughtful analysis including: the origins of lethal injection in this country, collapse of the original protocol of three-drugs (at issue in the Baze v. Rees case), a decade of botched executions from 2010-2020, state responses to these flagrant errors, and implications for futile reform and the future of capital punishment itself.

Professor Sarat begins the book and captures the readers’ immediate attention with a brief case study of Arkansas lethal injection executions in 2017 that resulted in a significant pattern of botches (stemming from the case of Jack Jones and the use of midazolam).  The case raised the issue of the unpredictability of the protocol and delay that can result from difficulties with the intravenous placements that can lead to multiple needle puncture wounds.  One of the main strengths throughout the book is the use of case studies to illustrate the specific themes, as well as his main argument that lethal injection is inhumane and an unconstitutional method of execution; this conclusion calls into question the continued viability of capital punishment in this country.

Sarat continues to elaborate on the history and origin of the use of lethal injection in the U.S.  As he explains, during the first century of the country’s existence, hanging was the main method of execution. Newspaper coverage of botches and decapitations resulted in state officials’ fears that the legitimacy of the death penalty would be imperiled.  This resulted in the consideration of a switch to either the electric chair or lethal injection to accomplish a more humane, quick, and painless death.  He summarizes the public fear of the hypodermic needle, lack of participation by doctors in performing the procedure due to the Hippocratic oath, and the medical community’s strong opposition to using lethal injection as a method of state-sanctioned killing. As a result, there was a movement toward using the electric chair for the next century. Another main theme identified early in the book relates to the duration of the execution and at what point the time factor becomes a “lingering death” and, thus, inhumane.  One of the main concerns with hanging was the length of time it took to kill inmates, which could last up to hours. The goal of moving to the electric chair or lethal injection was to kill the inmate quicker, theoretically in a matter of minutes.  The gas chamber was also introduced, but used less frequently than electrocution.  After a pattern of gruesome, botched electrocutions and gassings, there was a renewed interest in turning to lethal injection as a more humane alternative by the end of the 20^th century.

1. Jay Chapman, Oklahoma’s state chief medical examiner, basing his decision on admittedly unresearched presumptions, speculations, and other arbitrary factors, was the inventor of the first lethal injection protocol. This quickly became the model prototype of the three-drug cocktail that all states adopted prior to the Supreme Court challenge in Baze that upheld lethal injection. Texas was the first to introduce a lethal injection bill, but Oklahoma was the first state to officially adopt the protocol. Numerous additional states followed suit and basically copied the protocols and bills prior to an actual lethal injection execution taking place. Ironically, like the first electrocution of William Kemmler (1890), which resulted in a gruesome botch, Charles Brooks Jr (1982) was the first lethal injection execution in Texas and his execution was also botched.

Another unique facet of the book is Sarat’s description of the impetus for the collapse of the original lethal injection paradigm.  The company that produced the first drug in the cocktail, sodium thiopental, stopped manufacturing the drug. Consequently, states were forced to modify their protocols using different drugs.  Many switched to a one-drug protocol of an overdose of a barbiturate anesthetic (pentobarbital).  European drug companies also were unwilling to export drugs for the use in lethal injections in the U.S.  States then turned, in a secretive fashion, to unregulated drug distributors through illegal channels and compounding pharmacies, due to more relaxed regulations by the FDA.  The rise of compounding pharmacies supplying lethal drugs led to contamination, secrecy, and using new drugs, such as midazolam and etomidate.  This illustrates another striking, and very concerning, recent theme–the secretive nature that states resorted to in their goal to continue using this method of execution.  Moreover, Sarat details several case studies involving botched executions using these various new drugs and protocols.

In the chapter devoted to current botches, Sarat explains that the botch rate has gone from about 3 percent from 1890-2010 to an alarming increase to about 8.4 percent from 2010-2020.  Sarat catalogues a plethora of difficulties with the more recent lethal executions including: trouble with insertion of IV lines (particularly problematic is the length of time this takes in some of the executions); invasive cut-down procedures; and pain, including numerous symptoms representing both physical and emotional suffering.  An intriguing section of this chapter reviews an investigation conducted by National Public Radio (NPR) in 2020 that found signs of pulmonary edema (fluid in the lungs) in over 80 percent of post-mortem lethal injection autopsies they reviewed.  Similarly, Sarat’s own examination of all the 335 lethal injections between 2010 and 2020 found that 52 of the botched executions showed signs of pulmonary edema, breathing problems such as gurgling, and gasping for air.  Based on the NPR investigation and his own analysis, Sarat concludes that pulmonary edema is a highly prevalent side effect that is likely to occur in almost all recent lethal injection executions.  This chapter ends with some of the main themes that continue to the next chapter on state responses to these alarming botches, such as prolonged executions, secretive protocols, new drugs and numerous different protocols, increased discretion among prison officials and the execution team, untrained executioners, and ultimately, complete chaos and failure in achieving humanity with this method of execution.

Sarat explains that states have responded to the increased media coverage of botches in numerous dissentious ways that have had deleterious effects on the humanity of the lethal injection process.  More specifically, Sarat identifies these new developments in states including: procedural adjustments (which include the addition of specific waiting periods between drug injections); consciousness checks and cut-down procedures; secrecy and a desire to hide the executions from public view; lack of transparency and scheduled ‘curtain closures’ which have been the subject to legal challenges; ambiguity regarding an acceptable duration of an execution and clarity regarding the point where the execution has resulted in ‘prolonged or lingering death’; increased ambiguity of appropriate standards that have resulted in increased discretion of correction department officials and prison personnel; and overall decisional contingencies listed in protocols, which consist of complex instructions including “if then…” hypothetical scenarios during executions. In a compelling section of the chapter, Sarat details the current protocol changes in Ohio, from 2001 to 2020, as a persuasive case study to illustrate many of these themes and the utter chaotic nature of lethal injection executions.

Sarat contributes balance to the book by providing a brief synopsis of the heinous crimes that the inmates committed prior to detailing their botched executions.  The readers are confronted with their desire for retribution on behalf of the victims of the capital murders, while also wrestling with the states’ blunders and malfunctions during the lethal injection executions gone awry.  The author also seems to provide the crime details to blur the lines between the defendants’ crimes and the state sanctioned violence that is employed during the ‘purportedly humane’ lethal injections. 

In the conclusion, Sarat summarizes the overall argument regarding the inhumanity of lethal injection and subsequent implication for the movement toward complete abolition of the death penalty.  Sarat successfully argues that after the deterioration of the original lethal injection protocol, a myriad of grave complications has ensued throughout the country that have been far worse than the public could have ever imagined, which has obscured the distinctions between the crimes and executions.  He argues that much of the recent death penalty debate has centered on the general overriding concern in the public about innocence and wrongful capital convictions and, to a lesser degree, the systemic racial bias in the implementation of the ultimate punishment.  He finds it paradoxical that the issue of the humanity of lethal injection as a method of execution has not been placed in the forefront of this controversy and has been basically ignored in the debate.

Lethal Injection and the False Promise of Humane Execution is a well-written, interesting, and thought-provoking analysis of botched executions in the U.S. in the past decade.  Its main strength is the illustration of the utter chaos of the lethal injection experiment through case studies and updated botches in various states in recent years.  In sum, the book is a significant contribution to the fields of law, criminology, and capital punishment. It deserves a wide readership, including academics, students, lawyers, judges, politicians, and anyone in the public who is interested in learning more about the illusion of the humanity of lethal injection as a method of execution.

Talia Roitberg Harmon is a Professor and Chair of the Department of Department of Criminology and Criminal Justice at Niagara University.