Lethal Injection and the False Promise of Humane Execution by Austin Sarat

Author:Austin Sarat
Language: eng
Format: epub
Publisher: Stanford University Press
Published: 2022-02-15T00:00:00+00:00

The results of these restrictions are more or less what the states have hoped for: as states hide more of their procedures and executions, it becomes increasingly difficult to say that, or when, an execution went wrong. The implications of this lack of transparency are significant. As law professor Corinna Barrett Lain writes: “No transparency means no public scrutiny to trigger outrage over these decision-making processes so that democracy can do its thing. And no record-keeping or other rule-making requirements mean no processes for inmates to challenge, and no records by which courts can determine whether a DOC’s decision-making was arbitrary and capricious.”35

Courts demand that evidence challenging a protocol be highly detailed and specific, so this lack of transparency around what occurs in the execution chamber greatly inhibits inmates’ ability to challenge the conduct of their upcoming executions. Courts require inmates to produce evidence of actual errors that occurred under conditions similar to those in which they will be executed. These descriptions must be detailed accounts of an execution gone wrong in that particular state. Additionally, courts have repeatedly noted that they will not consider the “risk of accident” associated with a state’s protocol but will consider only the constitutionality of the protocol as written. As Madeira writes: “Though the state executes in the name of ‘the people,’ it is now increasingly impossible for citizens to learn what their state is doing. This opaqueness is dangerous to inmates and to citizens alike; it is our democratic right and privilege to decide what should be done about current lethal injection quandaries to determine where we want to draw the line, and what measures and outcomes are acceptable.”36

States prevent witnesses from viewing the entirety of the execution in several ways. One way is by closing the curtain between the execution chamber and the viewing window. In twenty-two executions between 2010 and 2020, the curtain was closed after witnesses had been ushered into the viewing room. In some instances, the curtain closure is regularly scheduled. For example, Ohio’s protocol calls for the curtain to be closed as officials assess the inmate’s status and declare death. But curtain closures, whether scheduled or unexpected, create gaps of time wherein witnesses cannot see the inmate’s reaction to the drugs.

Nebraska’s protocol does not call for the curtain to be drawn at particular junctures in a lethal injection, but it does not proscribe curtain closures either. Much of the state’s 2018 execution of Carey Dean Moore was hidden from witnesses by a closed curtain. The Associated Press reported that the drugs began to flow into Moore at 10:27 the morning of August 14, 2018. The prison warden closed a curtain over the media’s viewing window at 10:39 and did not open it again until about fourteen minutes later. Moore was declared dead at 10:47. The curtain was opened six minutes after that time to reveal Moore’s body. It remained open for only forty seconds.37

While witnesses did see that Moore gasped as the injection took effect and that his face turned red, then purple, the majority of the process was hidden from view.

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