By Andrew Malekoff
There has long been debate about whether the death penalty is inhumane, violates the constitutional ban against cruel and unusual punishment, fails as a deterrent and is economically and racially biased.
What we do know is that capital punishment is irreversible.
Defenders of capital punishment maintain that it represents justice, accountability and retribution for certain crimes; protects society; and helps to maintain the moral order.
While it is not the primary focus of this column, it should be noted upfront that according to the Death Penalty Information Center, “since 1973, 190 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that had put them on death row.”
WHEN LETHAL INJECTION FAILS
Looking beyond the pros and cons of capital punishment, should we be concerned when lethal injections are administered and repeatedly fail?
On Nov. 21, the Associated Press reported that Alabama Gov. Kay Ivey sought a break in executions and ordered a comprehensive review of the state’s capital punishment system following an unprecedented third failed lethal injection in two days.
The governor made her decision after the uncompleted execution of Kenneth Eugene Smith, which was the state’s third such instance of being unable to put an inmate to death since 2018. One execution was completed in July 2022, after a three-hour delay because of the same difficulty starting an IV line.
Do botched executions constitute cruel and unusual punishment, given that they are likely to intensify the agony for the inmate as well as their family members, friends, and official onlookers?
The Supreme Court held that the use of lethal injection, in and of itself, does not constitute cruel and unusual punishment. However, it is unlikely that, early on, they considered the extent of the fallout when lethal injections go wrong.
Perhaps it is my failure of character or absence of divine grace, that I cannot envision myself forgiving someone that murdered a loved one, let alone be disturbed if a lethal injection failed and led to additional distress for the perpetrator.
Yet, I am in awe of those that are capable of extending forgiveness under the most dreadful circumstances; such as the surviving parishioners and family members at the Mother Emanuel African Methodist Episcopal Church in South Carolina, where a gunman opened fire and murdered nine people on June 17, 2015.
Could I muster any sympathy whatsoever for the subject of a botched execution? If I was an aggrieved party, a surviving family member, might I welcome even harsher punishment to satisfy a deep desire for vengeance and extended suffering that could be meted out, if even inadvertently?
These are not easy questions and, as you can see, I am struggling with my answers.
Should a murderer’s extended suffering matter to me, given the heinous nature of their crimes? Perhaps not.
Nevertheless, botched executions affect more than death row inmates.
“Botched executions have been ordeals for the men on the gurney, their families, friends, ministers, and attorneys, and all the men and women working at the prison and involved in these botched attempts. The trauma of these executions extend widely to everyone that they touch,” said Bernard Harcourt, attorney for another Alabama death row inmate in a failed execution.
Many capital punishment adherents believe perpetrators of certain crimes “should suffer deaths as painful, if not more painful, than the deaths to which they subjected their victims,” says Bharat Malkani, senior lecturer, School of Law and Politics, Cardiff University, Cardiff, Wales.
“They are therefore unlikely to change their minds about capital punishment just because a murderer has suffered,” Malkani adds. Indeed, the briefest review of the acts of many death row inmates’ crimes makes it difficult to feel sympathy for them.
A 2018 study published by Cambridge University Press examined, “Why have accounts of botched executions not played a larger role in the struggle to end capital punishment in the United States?”
The investigators “examined newspaper coverage of botched executions to determine and describe the way they were presented to the public and why they have contributed little to the abolitionist cause.”
MISFORTUNE OR INJUSTICE?
They found that “although botched executions reveal pain, violence, and inhumanity associated with state killing, newspaper coverage of these events neutralizes the impact of that revelation. Throughout the last century, newspapers presented botched executions as misfortunes rather than injustices.”
According to Austin Sarat, reporting for SLATE magazine on Nov. 21, lethal injection was adopted with great fanfare in 1977 by Oklahoma and “hyped as the most humane execution method—has proved to be the least reliable of all. From 1977 to 2009, more than 7 percent of all lethal injections were botched.”
Lethal injection is dependent on unreliable drug combinations, compounded by state execution procedures that fail to adequately control what goes on in the execution chamber. Although the Eighth Amendment forbids cruel and unusual methods of capital punishment, it does not guarantee a prisoner a painless death.
In fact, reports Sarat, “the Oklahoma legislators who first proposed it promised that death by lethal injection would be accomplished with “no struggle, no stench, no pain—just a quick, merciful snuffing out of life.”
It looks like they got it all wrong.
