TIME Crime

America’s Execution Problem

The prolonged execution in Arizona was the third troubled lethal injection death this year. If our most modern form of capital punishment isn't working, what happens to the death penalty?

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Joseph Wood had been snoring and gasping in the lethal injection chamber at the Arizona State Prison Complex-Florence for more than an hour on July 23 when one of his lawyers placed an emergency call.

“Mr. Wood’s execution started at 1:52,” Robin Konrad, one of the convicted murder’s public defenders, said to Arizona Supreme Court Judge Neil Wake in a last-ditch attempt to have the execution stayed. “He was being sedated at 1:57. Since that time he has been gasping, snoring and unable to breathe and not dying. And we’re asking—our motion asks for you to issue an emergency stay and order the Department of Corrections to start lifesaving techniques as required under their protocol.”

At some point during the execution Wood had been given a second dose of lethal drugs, and the conversation on the emergency conference call hearing turned to whether he could feel pain. Jeff Zick, a lawyer representing the Arizona attorney general’s office, said medical personnel inside the chamber believed that Wood was effectively brain dead. “The brain stem is working but there’s no brain activity,” he said.

About 18 minutes later, as the judge was about to issue a ruling, Zick confirmed that Wood had died. The entire process took one hour and 57 minutes—an extraordinarily long time for a procedure that under normal circumstances lasts no more than 15 minutes.

Wood’s prolonged execution was the third troubled state-sanctioned killing this year. In January, Dennis McGuire, a convicted rapist and murderer, reportedly gasped and snorted through a 25-minute-long lethal injection in Ohio that used a then-experimental cocktail of midazolam and hydromorphone, the two drugs used on Wood in Arizona. In April, Oklahoma’s execution of Clayton Lockett was so poorly administered that it took nearly 45 minutes. President Obama called that episode “deeply troubling” and ordered the Department of Justice to review the process of capital punishment in the U.S.

As these executions renew the debate over the legality and morality of capital punishment, they are also undercutting the rationale for adopting lethal injection in the first place: once considered the most advanced and humane method of doing away with society’s most gruesome criminals, the practice increasingly appears no more safe or effective than its predecessors.

Lethal injection has been in use since 1982, largely without the kind of prolonged executions that have occurred this year. That was by design: it was a procedure developed to take a human life as painlessly as a pet is put to sleep. But the drugs used for the long-established protocol have been increasingly hard to come by as pharmaceutical companies balk for ethical reasons. Facing shortfalls, states have been turning to loosely regulated compounding pharmacies and trying new combinations of drugs.

The result has been a series of experiments, with occasionally disastrous outcomes. And it has meant that lethal injection is now facing the same questions as the electric chair, the gas chamber and the hangman’s rope before it. The difference this time is that there is no obvious substitute.

“The history of capital punishment over the last 100 years is largely a story of the belief in scientific progress,” says Austin Sarat, a professor of political science at Amherst who studies executions in the U.S. “And the story told was the same: the latest method is safe, reliable and more humane than its predecessor. But there is nothing over the horizon that portends that for the American death penalty.”

That’s one reason U.S. 9th Circuit Court Judge Alex Kozinski recently called for bringing back firing squads while acknowledging that executions cannot be neat and tidy. “Executions are, in fact, brutal, savage events, and nothing the state tries to do can mask that reality,” Kozinski wrote in a dissent involving Wood’s case just days before he was put to death. “If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

Kozinski’s solution was to stop pretending that a practice so grisly can ever be sanitized:

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true.

Some state lawmakers have also suggested firing squads, and Tennessee recently passed a bill allowing the use of the electric chair if lethal injection drugs are unavailable. But most of the 32 states with capital punishment appear committed to lethal injection. In April, Ohio announced that it was upping lethal injection dosages after a review of McGuire’s execution, but insisted that his lethal injection was “conducted in a constitutional manner.” Results of Oklahoma’s investigation into the exact causes of Lockett’s death have yet to be released.

In Arizona, Governor Jan Brewer said she was “concerned by the length of time it took for the administered drug protocol” to complete the execution and promised a full review of the process, but she denied that Wood was in pain and said he died in a “lawful manner.” In a statement confirming the opening of an investigation July 24, Arizona Department of Corrections Director Charles Ryan called reports that the execution was botched “pure conjecture because there is no medical or forensic evidence to date that supports that conclusion. In fact, the evidence gathered thus far supports the opposite.”

The questions over the use of lethal injection are further complicated by the horrific acts that lead inmates to the death chamber. Lockett was sentenced to die for shooting a young woman and ordering accomplices to bury her alive. Wood was convicted of killing his ex-girlfriend and her father in 1989.

“This man conducted a horrific murder and you guys are going, let’s worry about the drugs,” Richard Brown, a family member of one of Wood’s victims said after the execution. “Why didn’t they give him a bullet, why didn’t we give him Drano?”

Nevertheless, the drumbeat against lethal injection, and capital punishment in general, is growing. Among the critics of Wood’s execution are Arizona Senator John McCain, who called it “torture.”

“Never before, at least in recent American history, have botched executions raised issues of the death penalty itself,” Sarat says. “They have raised questions about the technology, but there was some other method waiting. Today, botched executions fit in with this narrative of the broken machinery of the death penalty.”

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