Deborah Denno comments to Pacific Standard magazine on how legal wrangling over the chemicals used in lethal injection could shut down capital punishment.
And that—according to Deborah Denno of Fordham Law School, one of the country’s top scholars of lethal injection, and Richard Dieter, of the Death Penalty Information Center—is the least of it. They cite the case of Missouri’s now-infamous Dr. John Doe, who presided over 54 executions. Dr. Doe, it turns out, had been the subject of 20 malpractice lawsuits and had privileges revoked by two hospitals. He was also dyslexic and frequently measured out less of the sodium-thiopental powder than the protocol called for, thus increasing the likelihood that the condemned were conscious when the other two drugs attacked.
In December 2006, Florida executioners fumbled with the vein of convicted killer Angel Diaz, sticking the needle in one side and out the other. A typical lethal-injection execution is supposed to take about 15 minutes; Diaz took 34 minutes to die. He was conscious for the first 25. Critics contended Diaz was tortured to death. Afterward, then-Governor Jeb Bush declared a moratorium on executions. In 2009, Ohio Governor Ted Strickland halted the execution of convicted killer Romell Broom after his executioners spent no less than two hours poking him 18 times. The prisoner “was helping them, he was in such pain,” said Denno. “He tried to kill himself. They even got the prison doctor in there, and they couldn’t kill him.”
According to Deborah Denno, states like California were loath to contemplate new execution methods. Doing so, she suggested, would be a tacit admission of possible problems with their three-drug protocol. Any deviation from the status quo, she added, would have opened California’s execution protocol to new legal challenges.
The Supreme Court “wanted to quell all the chaos, with Baze,” said Denno, “but since Baze, things have only gotten more chaotic than ever.” Before Baze, she noted, Jay Chapman’s was the one and only lethal-injection protocol. But since Baze, five states—Ohio, Idaho, Texas, Washington, and Arizona—have shifted tactics, embracing the one-drug process. Combined, these states have dispatched 26 condemned prisoners using the new methods. Four other states—Kentucky, Georgia, Missouri, and South Dakota—have announced they’ve changed their protocols, but have yet to actually use a new method.
DENNO AND CHAPMAN, who maintain a long-distance adversarial conviviality, agree that even if all of the death-penalty states—now numbering 33—adopted the one-drug protocol, not much would be settled. “It doesn’t matter what method you use, people will find some argument against it,” said Chapman. Denno regards the one-drug protocol as an improvement, but concedes that it “just raises new questions.”
For example, Denno pointed out, executing with the one-drug method takes longer. Inmates have been known to shudder and shake, disrupting what Chief Justice John Roberts described in the Baze ruling as “the dignity” of the procedure. (Of all methods of execution, Denno said, she found the firing squad the most defensible. It’s quick and definite, she said. It satisfies the public demand for punishment, while assuring the condemned a swift, straightforward exit.)
Read the entire Pacific Standard magazine story.
