Forty years ago this month America entered the era of execution by lethal injection. On Dec. 7, 1982, Texas used this method for the first time to put Charles Brooks Jr. to death. Since then, lethal injection has been used in almost 90% of all American executions.
Before the introduction of lethal injection, proponents claimed that it would solve America's century-long quest to find an execution method that was safe, reliable and humane. As one of them said, it would mean that executions could be carried out with "no struggle, no stench, no pain."
But things have not turned out that way.
Lethal injection has shown itself to be this country's most unreliable and troubled execution method. It is more frequently botched than any other way of putting people to death, more than hanging, the electric chair, the gas chamber or the firing squad.
Recent months have added new evidence of this disturbing fact, with an uptick in botched lethal injections. According to the Death Penalty Information Center, seven of the 19 lethal injections carried out this year have been botched — that's 37%.
In the story of lethal injection, attention is now rightly devoted to documenting its failures, but thinking about those failures should also lead us to ask how this deeply flawed technology of death became America's primary execution method.
The answer is more about happenstance than the result of any well thought-out plan.
Prior to the introduction of lethal injection, electrocution had been the dominant technology of death used in this country. But by the late 1970s and early 1980s, problems with executions using the electric chair made headlines everywhere. Death penalty supporters, fearing that those problems might undermine public support for capital punishment, began to search for other ways of putting people to death.
That search was not guided by scientific analysis and careful study. It was guided by a single person's hunches and intuitions, which cascaded and were widely imitated as lethal injection spread from one death penalty jurisdiction to the next.
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It all started in Oklahoma in 1977. A. Jay Chapman, then the state's medical examiner, devised the first lethal drug cocktail. It included three drugs, sodium thiopental (a sedative), pancuronium bromide (a paralytic) and potassium chloride (a drug that stops the heart). When asked why he selected those drugs, Chapman admitted that "he didn't do any research." He conceded that he was "an expert in dead bodies but not an expert in getting them that way."
But Chapman's casual approach didn't stop Oklahoma from adopting his method, and didn't stop other states from copying his formula.
On May 12, 1977, Texas became the second state to adopt lethal injection, just one day after Oklahoma. At the time, W.J. Estelle, then the director of Texas's Department of Corrections, said, "The lethal injection method suits our state of civilization more than electrocution."
The Texas statute was almost identical to Oklahoma's but initially did not specify the drugs that would be used. After spending several months considering various drugs and drug combinations, the state decided to use "sodium thiopental in lethal doses." It soon followed Oklahoma, adding pancuronium bromide and potassium chloride.
Soon several other states changed their execution method to lethal injection without waiting to learn the results of its early adoption. Even before Texas executed Brooks, Idaho, New Mexico and Washington had authorized execution by lethal injection.
The Oklahoma medical examiner who devised the first lethal-injection cocktail admitted he "didn't do any research," saying he was "an expert in dead bodies but not an expert in getting them that way."
These early adopting states mostly copied or paraphrased in their legislation and execution protocols the Oklahoma statute's language mandating that "death must be inflicted by continuous, intravenous lethal administration of a lethal quantity of an ultra-short acting barbiturate or other similar drug in combination with a chemical paralytic to cause death."
One week after Brooks' execution, Massachusetts became the sixth state to adopt lethal injection, once again prescribing the drug cocktail created in Oklahoma and first used in Texas.
In Massachusetts, proponents of lethal injection said the new method would provide inmates a painless and humane death. As one put it, "technology has come a long way since the electric chair... and because an injection is less painful and less offensive, it would be foolish not to use it."
Within a year, seven additional states — Arkansas, Illinois, Montana, Nevada, New Jersey, North Carolina and Utah — had switched their execution method to lethal injection. Each continued to rely on Oklahoma's original lethal injection formula and several turned to Texas for advice and expertise.
Lawmakers and correctional officials from around the country made pilgrimages to Texas's Huntsville Penitentiary, which housed that state's execution chamber, and consulted with prison officials. They did so, as the former warden of the Colorado State Penitentiary said in 1984, because the Texas execution protocol "seemed time-honored, tested, well-designed and effective."
By the end of that year, 23 states had passed lethal injection statutes, and every one of them chose the three-drug combination used in Texas and Oklahoma. That was still true when Nebraska became the 39th and last state to adopt the method in 2009.
This story of how lethal injection went from being a novel and essentially experimental execution method, developed through hunches and guesses, to being this country's primary execution method is by no means a reassuring one. Death penalty states behaved like lemmings, with one following and imitating another. They often were drawn to lethal injection by strong personalities or by the ease of copying others rather than doing their own thorough investigation.
As law professor Corinna Barrett Lain correctly observes, the origin and diffusion of lethal injection reveals that "across the country, state DOC officials carelessly copied a protocol that had been carelessly designed in the first place."
Reflecting on the history of lethal injection during a 2014 interview, Jay Chapman said that when he first proposed the three-drug protocol, "I had absolutely no concept at the time….This business of lethal injection was a pure sidelight, and the only reason I got involved was at the request of the legislator who was interested in a more humane method of execution…. [At] the time when I suggested it, I had no idea, not in my wildest flight of fancy would I have ever thought that it would've mushroomed into what it did."
After four decades, Chapman's "sidelight" has become an American nightmare. It is time to wake up from that nightmare and accept the fact that no matter how much we seek to perfect it, lethal injection cannot help us kill kindly.
from Austin Sarat on the death penalty