Strange days for capital punishment: Keep debate over lethal injections open, not hidden as state secret

When it comes to the death penalty in the United States, we are in a peculiar place these days.

I have studied capital punishment for more than 30 years, starting in college and continuing throughout my career in daily newspapers. I have interviewed, commiserated with and written about every participant – from victims’ families and homicide detectives to condemned killers; from prosecutors, judges and executioners to defense lawyers. I witnessed four electrocutions in Georgia and covered hundreds of capital trials in both Georgia and Alabama.

I never have seen the issue reach such extremes.

Oklahoma's death chamber for lethal injections

Since 2007, six states have scrapped the death penalty altogether. Fewer than 2 percent of U.S. counties (including Alabama’s Jefferson County, where I covered courts) have produced more than 50 percent of the nation’s current death sentences and executions, a recent study by the Death Penalty Information Center found. Some 85 percent of U.S. counties have not produced a single Death Row inmate in nearly five decades, the study showed.

A solid majority approves of capital punishment, but public support continues to drop. Last year’s annual poll by Gallup showed about 60 percent generally favor it, a 40-year low. Support dropped to a bare majority when respondents were offered an alternative sentence of life without parole.

Life-without-parole capital sentences are increasingly viewed by juries, judges, victims’ families and prosecutors as sufficient to punish the killer and protect society.

The result: even as legislators in states like Alabama increase the number of legal circumstances that could earn a death sentence, fewer and fewer murderers are condemned. The annual rate of new death sentences lately is the lowest it has been since capital sentencing resumed following a brief, court-imposed national moratorium in the early 1970s.

Yet, some death penalty proponents and some of the people tasked with carrying out court execution orders are digging in their heels and going to extremes to maintain the viability of putting killers to death.

Some states, including Alabama, even have debated laws that would keep secret the specific drugs and drug sources for lethal injections, which is the primary method of execution used by all 32 states (plus the federal courts and military) with the death penalty. About a dozen states have bills pending or existing laws or policies shielding their drug protocols.

The reason? For several years, states have been unable to obtain a primary component in the court-sanctioned, three-drug lethal cocktail that was in common use until European manufacturers cut off supplies.

States planning executions have turned to riskier, untried lethal-injection drug combos. Some are prepared by compounding companies, which only came under federal regulation six months ago after contaminated batches of compounded medicine led to dozens of patient deaths.

The Oklahoma legislature passed a bill in 2011 keeping secret the manufacturer and drugs it planned to use for executions. When two murderers slated for execution filed suit earlier this year, the Oklahoma Supreme Court voted 5-4 to delay their executions until it could rule on the condemned men’s legal challenge to the lethal-drug combination.

The state high court eventually authorized the executions to proceed, although the lethal drug combination became public. It was the painkiller midazolam; vecuronium bromide, a paralytic; and potassium chloride to stop his heart – a combination that had been used in Florida.



Stephanie Nieman with her grandparents

Lockett

First up was Clayton Lockett, who helped kidnap two women, a man and a child at gunpoint in 1999 and took turns with an accomplice to repeatedly rape the women.

Lockett shot Stephanie Nieman, leaving her to die, buried in a shallow grave while still alive. The survivors testified against Lockett, who also had made a boastful confession to police.

The execution officially began at 6:23 p.m. on April 29. Fewer than 10 minutes later, Lockett was declared unconscious. But he suddenly began to writhe and mumble while gasping. The curtains to the execution chamber were drawn. Lockett died of a heart attack at 7:06 p.m., more than a half-hour after the drugs were administered.

State officials are investigating whether the procedure was botched – or if, as defense lawyers claim, the new compound Oklahoma used resulted in state-sponsored torture. Currently, state officials cite a collapsed vein as the likely cause and have imposed a six-month moratorium on executions pending a full probe.

It’s ironic to me that lethal injection is under such strict scrutiny now, leaving some death penalty proponents longing for the electric chair. It’s turned the debate about execution methods by 180 degrees.

For decades until the early 1990s, electrocution was the primary execution method. Use of the electric chair was widespread by the 1920s, viewed as a more humane alternative to hanging and a counter to the lynching allusions the noose carried in Southern states that were the chief practitioners of capital punishment.



Georgia's old electric chair

The electric chair was fraught with problems and controversy. In Florida, six-inch flames leapt from the head of Jesse Traferro during his electrocution in 1990, and a few jolts were required to execute him. Several condemned murderers, including one in Alabama, died only after receiving multiple shocks because the first effort failed.

Georgia Power Co. refused to sell electricity for executions. The state installed a generator for that purpose. An hour before one planned execution I covered, the prison was plunged into darkness when a storm knocked out the power. Technically the state could have proceeded but officials had little taste for conducting an execution by candle light. It was postponed for better weather.

By the early 1990s, many death-penalty proponents viewed lethal injections as a more humane execution method – a recognition that society did not need to be so brutal in the effort to show people that killing people is wrong. Worried that death by electrocution would be outlawed by courts one day, state legislators and judges voted to mothball electric chairs and switch to lethal injection.

Of course, this method has had its problems – even with the court-approved, three-drug combination once in common use. Prolonged deaths have been cited in more than two-dozen executions by lethal injection since the mid-1980s, often due to problems finding a suitable vein.

The more problematic lethal injection has become, the more some pro-execution forces have responded by trying to operate in secret and hide those problems from public scrutiny.

No matter how people feel about capital punishment, I have yet to meet anyone who honestly doesn’t give a rip about doing it correctly or fairly.

Folks in our society may differ on the best way to respond to horrific, deliberate murders. But most would agree that, if we’re going to have it, capital punishment should amount to more than mere payback to murderers who in effect have lost a lottery.

Most would say if we are going to have capital punishment, it should be done accurately, equitably and correctly, in a way that doesn’t make us flinch as a society – much less hang our heads in shame. On whether that is possible, good people will continue to disagree.

But the ongoing discussion over capital punishment – especially how the state kills our killers – should be done in public. It should not be rendered a state secret. After all, states conduct these executions in our name.