Have executions become ‘cruel and unusual’ punishment?

Since the U.S. Supreme Court cleared the way for the reinstatement of the death penalty in 1977, states have moved away from hanging, gas chambers, firing squads and the electric chair. Now states turn most often to lethal injection.

For supporters of the death penalty, introducing a series of drugs to dispatch a convicted killer swept aside constitutional concerns about cruel and unusual punishment. 

A group of states have stepped away from the death penalty, either by law or in practice. Foreign pharmaceutical producers have refused to sell states the drugs they use to execute prisoners, and medical associations say they don't want their members overseeing the work of killing people. 

It appears to be getting tougher and tougher to carry out the ultimate sanction without prolonged executions like the one this week in Arizona.

What exactly happened in Arizona this week?

What is the history behind the death penalty in the U.S.?

Have executions become cruel and unusual punishment?

We consulted a panel of experts for the Inside Story.

Inside Story: What did you see when watching the execution of Joseph Wood?

Mauricio Marin: This is the first time I have seen an execution. I tried to prepare myself as a reporter, and I talked to former colleagues who had seen them. I was expecting it to take 10 minutes to occur. When I walked in there, there was a bed behind glass. They opened the curtain. He said his last words and they gave him the injection.

At the beginning it seemed fine. Then, after a while, there appeared to be problems. He started to gulp and gasp. I counted 660 times. I saw movement from his throat and mouth area and occasionally from his stomach as well.

Gov. Jan Brewer has said that Wood's gasping was snoring. Did it look that way to you?

From where I was sitting it did not appear like snoring. It seemed like some sort of gasping or gulping. I did not hear any noise to indicate it was snoring.

There was a microphone in the room. There were six times when the medical staff checked on him — for his pulse, etc. They would walk in to check on him and walk back to the mike with an update to tell us how he was doing.

Was there any sense in the room that something was going wrong or needed to stop?

I had lawyers to my left and family members to my right. After a while there was concern on the faces of the prison officials. About halfway through I saw Wood’s attorney hand a note to a woman in front of him. I later learned that it was his attempt to stop the execution.

Again, the medical staff checked on him, I believe six times, and told us he continued to be sedated. They were just reaffirming his status — checking his pulse and eyes — to say that he was sedated.

As a reporter, you cover the state of Arizona. Will this incident have any effect on the politics of the death penalty there?

Governor Brewer's asking of an independent investigation has drawn more focus for people who are in charge of the state.

Wherever you might go, there are people on both sides who agree or disagree about the death penalty. I am sure this has people with divergent opinions talking about it.

I really didn’t think the execution was going to end. I thought they were going to call it off. It was pretty bizarre.

Inside Story: In your years as an executioner in Virginia, how did you see the practice of the death penalty evolve?

Jerry Givens: It started out as electrocution. In 1994, Virginia adopted the lethal injection. They got the idea from Oklahoma. They started it back in the 1970s, I believe.
 

Were there incidents of failed executions in the electric chair in Virginia?

They were saying from my experience that the botched executions in Florida prompted it. I found out there were problems down in Florida because I went down to correct it. They used a synthetic sponge for the electrocution and a guy’s head caught on fire. I went down to help fix it.

Different things can cause it to go wrong. In the case of lethal injection, you saw clogged veins of former drug users. When you used the IV, you could see if there was blockage or a flow, but you do not continue to use it if you see a blockage. That is stupid. It should not take two hours for a lethal injection. 
 

Did you ever preside over any executions that did not go as planned?

I had a couple guys who had a nosebleed. Someone put the mask on backwards.

One guy was complaining because we couldn’t find the vein. He offered to find it for us because he knows it himself.

I am not a doctor. I don’t have a medical degree. I didn’t like it. You have to know exactly how to do it. You have to use an experienced medical person, and that is against their code of ethics.

Inside Story: It seems like the death penalty is on the decline in the U.S., with Europe forbidding the export of execution drugs, official state moratoriums and de facto moratoriums. Is this a real phenomenon, and if so, what are the main drivers?

Daniel LaChance: I think it is absolutely a real phenomenon. If you just look at yearly execution numbers, we saw a real change around 2000. They have been declining steadily ever since. There have been some periods where that has been related to the Supreme Court taking time to offer a judgment, but even in years where they haven’t, we are seeing a steady decline in the past 14 years.

There are a number of theories about why this is the case. One of the most obvious ones is the way the media has covered the death penalty has changed. Right around 2000, the media began shifting in its coverage from the morality and utility of execution — is it an effective deterrent or right of the state — and started to focus more on the rise of exonerations. DNA testing was revealing that a lot of people had been sentenced to death wrongly. That became a popularized phenomenon that a lot of people are familiar with. There has been a rise in awareness of wrongful execution.

Another, lesser-known factor is that courts are taking much longer to process appeals, for a variety of reasons. In some circuits, the death penalty is unpopular with judges, and so they are marked as the last cases by clerks for judges to rule on. In the 1990s, Congress passed the Death Penalty and Antiterrorism Act to speed up executions by limiting habeas corpus appeals. At that time, the wait period was 10 years. It is now 15 years. In the 1940s and 1950s, the wait time was two years. When we brought the penalty back in the 1980s and 1990s, the courts are so much more involved than they were before. But the reforms did not have the effect that was hoped for. We are now seeing the time between sentencing and execution grow to 15 years.

One of the byproducts of this decline in support is less availability of drugs and execution mishaps. What kind of effect will this have on the practice?

We are in a no-man’s-land of experimenting with new drug cocktails. In my mind, it raises the possibility that federal courts will intervene and say that this kind of experimentation on inmates will have to stop.

We have a history of botched executions. In the past, the response has been to innovate and create new technologies that solve the problems of the current apparatus that is not working already. If the court rules this is unconstitutional, they will return to the electric chair. A lot of folks are putting a lot of hope into these botched executions. But I think the court, both federal and Supreme, work a bit more modestly and are more likely to rule that lethal injection is unconstitutional.

The only method that has proven unsusceptible to botched executions is the firing squad. It is unpleasant to watch. But if you favor the death penalty, it is the method that effects punishment with the least chance of problems. The court has been very clear that capital punishment is not unconstitutional on its face; there is a real possibility that we will return to older methods.

The above panel was assembled for the broadcast of “Inside Story” to discuss.

For future hard-hitting conversations, find Al Jazeera America on your TV.