A Botched Execution?

Byron Black Execution Might Be Yet Another One

I apologize if people think that clip is in bad taste.

Still. Botched executions are not new. Austin Sarat studied the issue. Corinna Barrett Lain recently wrote an excellent book that examines botched lethal injections (with a few cameos involving other methods).

If Byron Black’s execution last week was botched, it would be far from surprising. Numbers are hard to come by, partially because not all errors won’t be caught.

Factoring that in, it might be the case that at least 10% of lethal injections are somehow botched. As Prof Lain discusses, there are many opportunities to mess up.*

Botched exe­cu­tions occur when there is a break­down in, or depar­ture from, the ​“pro­to­col” for a par­tic­u­lar method of exe­cu­tion. The pro­to­col can be estab­lished by the norms, expec­ta­tions, and adver­tised virtues of each method or by the government’s offi­cial­ly adopt­ed exe­cu­tion guide­lines. Botched exe­cu­tions are ​“those involv­ing unan­tic­i­pat­ed prob­lems or delays that caused, at least arguably, unnec­es­sary agony for the pris­on­er or that reflect gross incom­pe­tence of the exe­cu­tion­er.” Examples of such prob­lems include, among oth­er things, inmates catch­ing fire while being elec­tro­cut­ed, being stran­gled dur­ing hang­ings (instead of hav­ing their necks bro­ken), and being admin­is­tered the wrong dosages of spe­cif­ic drugs for lethal injections.

Prof. Lain purposely did not flag the crimes that the people involved committed. People will find this a tough thing to do. See also when trial rights are involved. It is easier to raise the possibility of innocence.

Other problems, however, also have some traction. Botched executions have received some attention for some time now. They have been a reason multiple states had execution moratoriums, including the continuing one in Ohio.

The Eighth Amendment covers much ground. I recently referenced a case involving the treatment of a trans prisoner. A core concern, in the minds of some conservatives, maybe the only concern, of the Cruel and Unusual Punishment Clause is the means of punishment. How we execute people, therefore, is a special constitutional concern.

The Supreme Court has not shown such concern in recent years.

A few cases allowed people to raise claims. Concerns about respecting religious needs during the execution received respectful attention. There has NEVER been a successful claim (to my knowledge) at the Supreme Court level involving the execution process on the merits. The irony here was recognized by the FFRF Foundation.

Prof. Lain also addresses other issues, also not been given respectful SCOTUS attention, including the release of information about the means of execution.

Because of his heart condition, Black had an implantable cardioverter-defibrillator in his chest. Its job was to keep his heart working by delivering electrical stimulation when necessary.

Byron Black (on death row for 36 years) had many health problems. His execution almost appears to be a form of involuntary euthanasia. The defibrillator device was a concern. A trial judge agreed that removal was necessary to prevent unnecessary pain when he was executed. Overturned on appeal.

The issue was one of the final appeals that the Supreme Court swept aside (as usual) without comment. It would not be the first time that a “no comment” was followed by a botched execution somehow tied to the concerns swept away.

The witnesses, including those experienced at watching executions, recognized something was wrong. Was the device at least part of the problem?

The lethal injection drug did not appear to operate correctly. Again, if so, as Prof. Lain explains in often painful detail, that is quite unsurprising.

We use high standards (e.g., “beyond a reasonable doubt” as determined by a unanimous jury) when the stakes are high. Execution should be recognized as such a situation. Overall, it leads me to oppose the punishment on principle.

Our society has not reached that moment. We are left trying to do the best we can. This includes recognizing that sometimes we do it badly. To be somewhat upset when that happens would also be helpful. Not just “oops, did it again!”

Still, even that would be better than some who refuse to face up to the situation at all. They refuse to grant that mistakes are made, perhaps changing the subject to focus on the crimes that the people committed.

The person here was serving time in prison for over three decades. A botched execution was not necessary for him to be punished (putting aside concerns about his competency) for his crimes. The next execution is on August 19.

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Note: The search for a problem-free method of taking human lives, particularly against their will, continues to be something of a snipe hunt. The latest attempt, nitrogen gas, is the new promised land. Questionable.

Just war theory argues that sometimes the taking of human lives in wartime is justified. I question the application of the principle here, especially given the number of places (including New York) that survive quite adequately without it.