Criminal Law Library Blog
The death penalty remains a highly contested issue in the United States, with arguments raging on both sides. However, beyond the ethical and legal debates lies a lesser-known aspect: the phenomenon of failed executions. These attempts, often characterized by prolonged suffering and technical difficulties, raise serious concerns about the very concept of a humane and constitutional capital punishment system.
Historically, the U.S. has employed various methods for execution, each with its own share of botched attempts. The electric chair, implemented in the late 19th century, witnessed numerous cases where the condemned endured extended periods of agony due to malfunctions or improper application. Lethal injection, the current primary method, has also been plagued by issues. From 2000 to 2020, an estimated 7% of all lethal injection executions were classified as botched, often involving prolonged struggles to establish an intravenous line, raising concerns about unnecessary suffering inflicted upon the condemned. It is estimated that 3% of U.S. executions in the period from 1890 to 2010 were botched.
The case of Thomas Eugene Creech in Idaho in 2023 exemplifies the harrowing realities of failed executions. Despite repeated attempts by medical personnel, a suitable vein could not be located for lethal injection, forcing the execution to be halted. This incident, like many others, highlights the inherent fallibility of the execution process where unforeseen complications can transform the intended punishment into an act of torture. In his article in Verdict discussing this case, Austin Sarat, a professor of jurisprudence and political science at Amherst College, argues that “systemic issues and denial by state officials perpetuate the cruelty and inefficiency of lethal injections, urging an acknowledgment of its failures and a cessation of its use for capital punishment”.
In his book, “Gruesome Spectacles: Botched Executions and America’s Death Penalty, Professor Sarat writes: “Botched executions occur when there is a breakdown in, or departure from, the ‘protocol’ for a particular method of execution. The protocol can be established by the norms, expectations, and advertised virtues of each method or by the government’s officially adopted execution guidelines. Botched executions are “those involving unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner. Examples of such problems include, among other things, inmates catching fire while being electrocuted, being strangled during hangings (instead of having their necks broken), and being administered the wrong dosages of specific drugs for lethal injections.”
Professor Michael L. Radelet of the University of Colorado has compiled a List of Examples of Post-Furman Botched Executions. The list has been updated to February 28, 2024. In an introductory Note to the List, Professor Radelet writes: “The below is not intended to be a comprehensive catalogue of botched executions, but simply a listing of examples that are well-known. There are 61 executions or attempted executions listed: 2 by asphyxiation, 10 by electrocution, and 49 by lethal injection, including six failed executions that were halted when execution personnel were unable to set an IV line. By ‘botched’ I mean as those involving unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner” (Borg & Radelet, 2004:144). For more information on how I define ‘botch’ and other methodological decisions, see Marian J. Borg & Michael L. Radelet, On Botched Executions, pp. 143-68 in Peter Hodgkinson and William Schabas (eds.), CAPITAL PUNISHMENT: STRATEGIES FOR ABOLITION. Cambridge: Cambridge University Press (2004).”
Opponents of the death penalty argue that these botched attempts violate the Eighth Amendment’s prohibition of cruel and unusual punishment. They emphasize the inherent potential for suffering and the psychological trauma inflicted on not only the condemned but also the witnesses and execution personnel involved. Proponents, however, often counter that such incidents are rare and necessary steps to ensure the execution process is carried out humanely.
The debate surrounding failed executions goes beyond individual cases. It raises fundamental questions about the very nature of capital punishment. Can a process inherently designed to inflict death ever truly be humane, especially when considering the possibility of unforeseen complications and prolonged suffering?
In conclusion, failed execution attempts serve as a stark reminder of the inherent flaws and ethical complexities associated with capital punishment. These incidents raise critical questions about the possibility of a humane death penalty and highlight the potential for inflicting unnecessary suffering on individuals subjected to this controversial practice. As the debate surrounding the death penalty continues, the issue of failed executions demands careful consideration and a reevaluation of whether this practice truly aligns with the principles of a just and humane society