Two of Deborah Denno’s articles were cited by U.S. Supreme Court Justice Sonia Sotomayor in her dissent from the Court’s denial of certiorari in the death penalty case of Arthur v. Dunn.
The cited articles are “Is Electrocution An Unconstitutional Method of Execution? The Engineering of Death Over the Century” and “When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us.”
The first drug is critical; without it, the prisoner faces the unadulterated agony of the second and third drugs. The second drug causes “an extremely painful sensation of crushing and suffocation,” see Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L. J. 63, 109, n. 321 (2002); but paralyzes the prisoner so as to “mas[k]any outward sign of distress,” thus serving States’ interest “‘in preserving the dignity of the procedure,’” Baze, 553 U. S., at 71, 73 (Stevens, J., concurring in judgment). And the third drug causes an “excruciating burning sensation” that is “equivalent to the sensation of a hot poker being inserted into the arm” and traveling “with the chemical up the prisoner’s arm and . . . across his chest until it reaches his heart.” Denno, supra, at 109, n. 321.
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Finally, States turned to a “more humane and palatable” method of execution: lethal injection. Denno, 63 Ohio St. L. J., at 92. Texas performed the first lethal injection in 1982 and, impressed with the apparent ease of the process, other States quickly followed suit. S. Banner, The Death Penalty: An American History 297 (2002). One prison chaplain marveled: “‘It’s extremely sanitary. . . . The guy just goes to sleep. That’s all there is to it.’” Ibid. What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet.
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Finally, States turned to a “more humane and palatable” method of execution: lethal injection. Denno, 63 Ohio St. L. J., at 92. Texas performed the first lethal injection in 1982 and, impressed with the apparent ease of the process, other States quickly followed suit. S. Banner, The Death Penalty: An American History 297 (2002). One prison chaplain marveled: “‘It’s extremely sanitary. . . . The guy just goes to sleep. That’s all there is to it.’” Ibid. What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet. at 66. Even if we sweep aside the scientific evidence, we should not blind ourselves to the mounting firsthand evidence that midazolam is simply unable to render prisoners insensate to the pain of execution. The examples abound.
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As an alternative to death by midazolam, Thomas Arthur has proposed death by firing squad. Some might find this choice regressive, but the available evidence suggests “that a competently performed shooting may cause nearly instant death.” Denno, Is Electrocution An Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35 Wm. & Mary L. Rev. 551, 688 (1994). In addition to being near instant, death by shooting may also be comparatively painless. See Banner, supra, at 203. And historically, the firing squad has yielded significantly fewer botched executions. See A. Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty, App. A, p. 177 (2014) (calculating that while 7.12% of the 1,054 executions by lethal injection between 1900 and 2010 were “botched,” none of the 34 executions by firing squad had been).