Apr 30, 2021

The state's right to kill its citizens

An examination of the death penalty.

Warning: today’s edition of Tangle includes graphic descriptions of killings, sexual assault and executions. It may not be suitable for some readers.

Today’s read: 13 minutes.

Zane Michael Floyd is scheduled to be executed by the U.S. government in June. He has submitted an unusual request to the courts: death by firing squad.

Floyd is a convicted killer. If executed, he’ll become the first person to be killed by the state of Nevada in 15 years. Like most people, Floyd does not want to die. But he has a particular aversion to the idea of lethal injection. So he has requested something that — in his telling — would be a more humane solution. A bullet in the head.

The bizarre circumstances of Floyd’s case are once again thrusting the government’s right to intentionally kill its citizens into the spotlight. While 24 states still allow the death penalty, only three — Mississippi, Oklahoma and Utah — still allow capital punishment by gunfire. That has made it unclear whether Floyd will get his wish, which he appears intent on pursuing in court.

But why? Why would someone choose to die in a violent, gruesome way like “death by firing squad” rather than the more painless, peaceful option of lethal injection? If that is a question you are asking, you’d be making some poor assumptions about the choices Floyd is facing.

The first recorded execution in America was in 1608. Captain George Kendall was executed for being a spy for Spain. By 1612, Virginia’s governor had enacted laws that called for executions if someone traded with Native Americans or stole grapes. Kendall, like many of the estimated 16,000 people who have been killed by a U.S. state since, was hanged.

Hanging, as you probably have seen in the movies or read about in history books, is not a particularly nice way to die. Hanging a person can go — and has gone repeatedly, throughout the history of executions — very wrong. In 1930, the first woman ever executed in Arizona was decapitated in front of a crowd of hundreds because the rope was too long. If the rope is too short, though, a hanging can slowly strangle a person rather than break their neck, which leads to a long, ugly death by suffocation.

It took a couple of hundred years for Americans to come to the conclusion that hangings were cruel, but we finally did. When we decided this form of execution was inhumane, we moved on to electrocuting prisoners instead. Thomas Edison secretly participated in the development of the first electric chair (despite publicly stating his opposition to the death penalty), and the first man to sit in it was William Kemmler, another convicted murderer.

Kemmler’s execution, like others before it, was a spectacle. It took place in 1890 and the room was full — people came from all over the state of New York to watch it. “This is the culmination of ten years’ work and study,” Alfred Southwick, who is credited as the inventor of the electric chair, proclaimed during the execution. “We live in a higher civilization today.”

Behind him, Kemmler’s “humane” execution was going horribly wrong. Electricity pulsed through his body for a full, agonizing, 17 seconds. It was clear to witnesses that he was both alive and in great pain. Some fainted, others ran out of the room, or lost their stomachs at the smell of burning flesh. “They could have done better with an ax,” George Westinghouse, a rival inventor of Edison’s who also helped develop the chair, said afterward.

That didn’t stop the electric chair’s use, though. Instead, its use was proliferated. More than 4,000 people have been killed by electrocution since, with a 3.7% “botch rate.” One prominent example of a botched execution came in 1946, when 17-year-old Willie Francis screamed “I am not dying!” as he writhed in pain inside a Louisiana prison. Francis survived, appealed to the Supreme Court on the grounds that going back to the chair would be unconstitutional, and lost his case in a 5-4 ruling. He went back to the electric chair a few months later — and this time his execution was “successful.”

As of 2021, on all of planet earth, there are only five places that still allow the government to kill someone with the electric chair: Alabama, Florida, South Carolina, Kentucky, and Tennessee. The last person to be killed by electric chair without the choice of an alternative was Lynda Lyon Block, who was executed on May 10, 2002.

Naturally, the gruesome nature of electric chair executions has inspired the development of alternatives. One is death by lethal gas, which has been the least common of all the “humane” alternatives to hanging or shooting people.

The first lethal gas execution was attempted in Nevada in 1924 on Gee Jon, a Chinese national and member of the Hip Sing Tong criminal society. The practitioners botched that first attempt, though, when they tried to pump the gas into Gee’s cell while he slept. Instead, the gas leaked from his cell and mostly stayed at floor level. Undeterred, they decided to create the gas chamber.

In a gas chamber execution, a prisoner is sealed inside an airtight chamber that is then pumped with hydrocyanic gas or carbon monoxide or some other asphyxiant fume, which renders the prisoner into an unconscious state where they choke to death. Sometimes, though, prisoners hold their breath, or the poisoning doesn’t go as planned, which can cause violent convulsions during the conscious suffocation of the convicted. In 1983, Jimmy Lee Gray spent eight minutes gasping for air before Mississippi wardens cleared the room of witnesses to his execution. In 1992, Donald Harding took 11 minutes to die in the gas chamber, an experience that was so traumatizing for the prison warden he vowed to quit unless the practice was permanently banned.

Naturally, after hangings, firing squads, electrocutions and the gas chamber all failed to produce satisfactory results, the grisly innovation continued. Next up was lethal injections, the most common tool for capital punishment today.

The pioneer of lethal injections was Jay Chapman, an Oklahoma state legislator and the state’s chief medical examiner. Chapman came up with an idea for an injection that would do three things: put a prisoner to sleep, paralyze them, and stop their heart. One of the common cocktails of drugs that he said could do these things in the proper order was sodium thiopental, pancuronium bromide, and potassium chloride. But in each state, lethal injections differ — there’s no clear cut standard, and too often, doctors aren’t even involved in deciding what drugs get used. In a 2015 cover story in The Atlantic, Jeffrey Stern wrote the following:

What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise. In many cases, the person responsible for selecting the drugs has no medical training. Sometimes that person is a lawyer—a state attorney general or an attorney for the prison. These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past. So naturally, they prefer not to experiment with new drugs. In recent years, however, they have been forced to do so.

It took years for the lethal injection to first be used in the U.S. The very first person executed by lethal injection was Charles Brooks, Jr., who received a lethal dose of sodium pentathol. That was in 1982. 32 states and the U.S. military have adopted lethal injections over the following decade. Since 1982, 1,054 people have been killed by lethal injection — including 74 botched executions. According to the Death Penalty Information Center, despite being the latest innovation, lethal injections have the highest failure rate of any form of execution they’ve tracked in American history — over seven percent.

Later in life, Chapman said he regretted his name being attached to lethal injections. His purpose in life, he says, was as a pathologist, and all he tried to do was give the state an alternative to firing squads or the gas chamber. But Chapman had no idea then that his idea would catch on, spread so quickly, and soon become the most popular form of capital punishment in modern day America.

Perhaps the most famous botched lethal injection came in June of 2015. The case became famous, not just because of its horrifying conclusion, but because of the events that led to the execution.

Clayton Lockett was in the custody of the state of Oklahoma, which has laws that keep nearly every part of its execution process secret from the public. Where the state gets its drugs, who administers them, how it regulates lethal injections — all of this was shrouded in mystery. And leading up to Lockett’s execution, one dogged reporter was trying to track down those details, which became the centerpiece of the aforementioned cover story in The Atlantic.

As Lockett’s execution neared, there were a number of high-profile lethal injections that caused varying degrees of outrage or concern. In 2013, Florida tried executing a man named William Happ with a sedative called midazolam. Happ “shook his head, blinked, and opened his mouth” during his execution, setting off alarm in the room that he remained conscious longer than inmates who were killed with other sedatives. A few months later, the state of Ohio used the same drug on Dennis McGuire, who “snorted, heaved, clenched one of his fists, and gasped for air” during the execution. While Lockett’s lawyers were fighting to delay his execution in Oklahoma on Eighth Amendment grounds (cruel and unusual punishment), the state executed Michael Lee Wilson, who told the room “I feel my whole body burning” shortly after his lethal injection began.

The U.S. Supreme Court declined to hear Lockett’s case. Instead, it bounced around the Oklahoma legal system until Scott Pruitt — who was then the state Attorney General and would later become a household name as head of the Environmental Protection Agency under Donald Trump — conceded in a court document that the state still didn’t have the drugs it needed for Lockett’s lethal injection, which was two days away. Lockett won a one-month reprieve.

A month later, the day before Lockett was scheduled to be executed, he got a miracle: the State Supreme Court ruled 5-4 in favor of granting a stay of execution after Lockett’s lawyers challenged the state law that allowed the secrecy around the execution. This meant the court was going to spend time contemplating a series of these capital punishment challenges — including Lockett’s — that had been dropped at their feet. At the time, it looked like executions would be paused in Oklahoma for what could have been years. It was the state supreme court’s ruling over state law, so there was no challenge to go to the U.S. Supreme Court, and no higher court to overturn it.

But on the same day, Oklahoma Gov. Mary Fallin made a shocking and unprecedented decision. She issued an executive order saying she did not recognize the Oklahoma supreme court’s authority, then scheduled the lethal injection for Lockett a week later. Her move rallied state representatives who then filed articles of impeachment against the members of the court, and the justices eventually folded. Two days after the court had paused executions to examine the state law that shrouded them in secrecy, it reversed course, lifted the stay, and allowed the execution to go forward.

It was pandemonium. National news outlets wondered aloud if we had just watched the criminal justice system collapse in Oklahoma. Reporters flooded the state. A media frenzy unfolded, and the Oklahoma attorney general called it a “constitutional crisis.”

Given the unusual circumstances surrounding the execution, the room was packed for Clayton Lockett’s lethal injection.

What happened next has been covered extensively — in court documents, in long form stories, by local reporters in Oklahoma, and in firsthand accounts about the execution. All you need to know is that everything went wrong: the paramedic performing the execution was inexperienced, the pressure was intense and the equipment wasn’t what it needed to be. The paramedic and a doctor on scene had so much trouble finding Lockett’s vein for the injections that they started prodding his neck with needles, then both of his feet, then his chest, then the femoral vein in his groin.

The first injection — a sedative — didn’t do what it was supposed to. Instead of going straight into Lockett’s bloodstream through his groin, it passed into his tissue, the IV became dislodged, and Lockett remained alert. After about five minutes he closed his eyes in the chair, at which point he was checked on — but still conscious. Two minutes later, in a follow-up, the doctor present pinched Lockett and prodded him, determining that he was now unconscious.

Next up was vecuronium bromide, a paralytic chemical that was banned by The Animal Welfare Act for use in euthanasia of animals. Anti-death penalty advocates have argued that the paralytic is proof the state has no faith in its sedative; otherwise, what’s the point of having it? Why paralyze someone if they are asleep? Instead, they argue, it prevents the prisoner from alerting the room that they are still awake or feeling pain.

In Lockett’s case, though, there was a bigger problem: the IV that was supposed to be delivering the sedative was no longer in place. Nobody in the room knew that, as the IV was in his groin and his body was covered by a sheet. Without realizing their mistake, after a few minutes, they gave him the final drug: potassium chloride.

Shortly after, a reporter in the room noticed Lockett’s sheet began to move. Then Lockett fought his restraints, rolled his head and opened his mouth to speak. His breathing became labored, he kicked his legs, a chorus of things that weren’t supposed to be happening, which climaxed when he began violently writhing in the chair, where he should have been quietly, silently, and painlessly dying.

The doctor and paramedic swarmed Lockett, the blinds came down in the viewing room, and underneath the sheet they found a tennis-ball sized protrusion at his groin. The doctor tried to put another IV in Lockett’s leg, whose eyes were now open and looking at him. Instead, he hit an artery, causing blood to spray over him which “soaked his jacket.” Outside in the viewing room, the prison warden, the governor’s general counsel, and a few other authorities argued about whether to try to keep Lockett alive or keep trying to kill him.

While they fought, and the medical professionals fumbled over his IV and the drugs that were supposed to be taking his life, Lockett’s heartbeat slowed to fewer than 20 beats per minute as he struggled and eventually died.

At 7:06pm on April 29th, 2014, over an hour after this execution began, the staff on hand declared that Lockett was dead.

Clayton Lockett was in prison for an unconscionable crime. In 1999, he went to the home of an acquaintance who owed him $40, brought along his cousin, a friend and a shotgun, and pummeled the man. In a sheer, awful coincidence, a woman named Stephanie Neiman arrived on the scene with her friend to visit the man whom Lockett was attacking. They arrived in the middle of the beating. Lockett demanded Neiman hand over the keys to her car, which she refused to do, so Lockett and his two accomplices responded by raping Neiman’s friend, continuing to beat the man who owed him money, and then binding all three victims and driving them to the border of Kansas.

There, Lockett and his accomplices threatened all three people for assurances they wouldn’t go to the cops. Neiman’s two friends obliged; she did not. Lockett asked her several times, and each time she answered honestly: she was going to the police. Lockett let the friends go, then he shot Neiman twice. She was still breathing after the shooting, so Lockett and his accomplices buried her alive in a shallow grave, where court records say she struggled to breathe and dirt puffed up out of the ground as they left her there to die.

It took years before Lockett expressed anything that even resembled remorse, and even then his message to the Neiman family was rather simple: if taking my life will bring you solace, then that was an outcome he accepted.

Lockett’s crime — and his punishment — were not uniquely horrible. During his challenges to the state of Oklahoma, Lockett’s attempt to delay his execution was paired with another death row inmate’s challenge, Charles Warner, who was convicted of raping and killing his roommate’s 11-month-old baby. Dennis McGuire, the Ohio man who “snorted, heaved, clenched one of his fists, and gasped for air” in the botched execution shortly before Lockett’s, had kidnapped, raped and murdered a 22-year-old woman who was seven and a half months pregnant.

The list of horrors goes on.

Zane Michael Floyd is asking to be killed by firing squad.

That executing prisoners by state order often results in gruesome scenes of suffering is not the only issue with the death penalty. Neither is the fact that judges, prosecutors and juries tend to more readily hand out the death penalty to Black defendants than to White ones. The biggest problem is not that the death penalty is absurdly expensive, more so than housing a prisoner for life, and so over the top that one former New York district attorney once said “I think I could prove to you that I could put someone in the Waldorf Hotel for 60 to 70 years and feed them three meals a day cheaper than we can litigate a single death penalty case.”

No, the biggest, most horrifying fact about the death penalty is that we have killed innocent people.

185 inmates have been exonerated and released from death row since 1973. The Death Penalty Information Center says 3.94 people a year on death row are exonerated. The conclusion of these exonerations is twofold: one, it means we have assuredly killed innocent people prior to 1973. And two, it means we have killed innocent people whose appeals were very likely not properly evaluated before they were put to death.

In Alabama alone, since 1976, judges have overridden 112 jury sentences. 91% of those overrides have been to impose the death penalty after a jury called for a sentence of life in prison. Nearly 20% of the people currently on death row in Alabama are there because a judge sentenced them to death in a judicial override of their jury. Alabama finally abolished the judicial override in 2017, but it doesn’t apply retroactively.

In March, Virginia repealed the death penalty. It was a watershed moment, as the state was home to the first execution in 1608, has killed more inmates than any other state since, and is now the first state in the south to abolish the death penalty.

Since the mid-1990s, death sentences have declined more than 85 percent. 24 states still have the death penalty, but 23 states and Washington D.C. have banned the practice and three more are currently in a moratorium.

It may not be hard to guess my feelings on the death penalty by reading this newsletter. It’s worth noting, of course, that the death penalty is still supported by most Americans and many legislators. While public support for the death penalty is the lowest it’s been in decades, 55 percent of respondents to a national survey conducted between September 30 and October 15, 2020 told Gallup that they were “in favor of the death penalty for a person convicted of murder.”

The reasons to support the death penalty are not the same for everyone. Some simply believe in “an eye for an eye” justice — if you take a life, you lose your own. Others view it simply as a matter of law: the U.S. Supreme Court has struggled with the issue, but the latest precedents have been rulings that frame the death penalty as constitutional. Some simply view the people who have committed these horrific crimes as unfit for life on this planet, and irredeemable to the point that the death penalty is a better option than having the state house and feed them for years.

In Heritage, Charles Stimson has argued that the death penalty serves three main purposes:

The first, general deterrence, is the message that gets sent to people who are thinking about committing heinous crimes that they shouldn’t do it or else they might end up being sentenced to death.

The second, specific deterrence, is specific to the defendant. It simply means that the person who is subjected to the death penalty won’t be alive to kill other people.

The third penological goal, retribution, is an expression of society’s right to make a moral judgment by imposing a punishment on a wrongdoer befitting the crime he has committed. Twenty-nine states, and the people’s representatives in Congress have spoken loudly; the death penalty should be available for the worst of the worst.

To say there are flaws in these arguments, which are shared by other proponents of the death penalty, would be a vast understatement.

First, there is no evidence that the death penalty is an effective deterrent against crime. To state this as fact is simply indefensible. A panel from the National Academy of Sciences addressed deterrence in 2012 and argued that there was no credible evidence — only contradictory evidence — about the death penalty’s impact on homicides. There has been testimony on both sides of this issue, but recent studies evaluating individual states and other countries who abolished the death penalty in the last 30 years have led to a vast majority of criminologists saying the death penalty was not an effective deterrent.

Second, the idea that killing a defendant is the only means to prevent that person from killing again is an obviously flawed claim. We can keep someone in prison for life, a solution that has its own issues, of course, but at least ensures we don’t kill someone who may be innocent. Again, it’s worth reiterating here that the unseemly image of your tax dollars housing or feeding convicted criminals is misleading and counterintuitive, when you take into account the fact that executing someone is often far more costly. A Susquehanna University report found that, on average, across every state, death row inmates cost $1.12 million more than a general population inmate. In July 2018, there were 2,738 inmates on death row. That's almost $3 billion more in additional expense than if they had all been sentenced to life in prison instead.

Third, and finally, is the idea that it is a society’s right to provide equal retribution for the victims of these horrible crimes. While a certain peace could be made for some families, the reality of this argument is similarly convoluted: many, many families of victims have spoken out against the death penalty, often trying to stop states from killing the perpetrators of crimes against their loved ones because it harms their own healing process.

More than anything, though, the argument about whether we should allow state-sanctioned murder should be this: have we made the odds of killing an innocent person acceptably small? Can we be certain of a defendant’s guilt each time we sentence someone to death? In other words, are we saying it is acceptable to society that we kill three innocent people on death row a year? How about one? Or one every 10 years?

To me, the answer is no — to all of these questions.

No government-sanctioned death penalty should be morally or legally acceptable given what we know about the cruelness of executions, the consistent and demonstrable mistakes made by our court systems in proving innocence and guilt, and the irreversible decision to take another person’s life.

In this moment in history, the momentum to end the death penalty is gaining. Globally, more than 100 nations have already banned the practice. Here in the U.S., the number of states that have abolished the death penalty is increasing, and the kinds of executions we allow are diminishing.

The next step is convincing the American public — more than half of whom still support this barbaric practice — that it is in their best interest to reverse course. That step, unfortunately, could be the most difficult of all.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.