Straight to the point

How can a country as sophisticated as the United States botch executions with such monotonous regularity? On 17 November 2022, the State of Alabama tried and failed to kill Kenneth Eugene Smith, who had spent 34 years on death row after admitting to the murder-for-hire killing of a pastor’s wife in 1988. The executioners poked and prodded Smith for four hours, trying to find a vein for lethal injection, and only stopped when it became clear they would not get the job done before the midnight deadline.

Now, Alabama has come up with a new way of killing him. last Thursday, the state Supreme Court ruled that Smith will be executed via nitrogen gas — despite his lawyers arguing he should not be subjected to a painful execution attempt for a second time. While death by nitrogen has been legal since 2018, it has never been used on an inmate. If he is subjected to this novelty, Smith will be a human experiment.

Why does the American justice system find it so hard to kill people? The answer lies partly in how its execution methods are conceived in the first place. The nitrogen gas method was not based on decades of scientific research — instead, it was inspired by a remarkably cavalier BBC documentary, How to Kill a Human Being (2008), in which British Tory MP Michael Portillo, a man with no expertise in the area, tested all the established execution systems then in use, finding each one wanting. At the end of the film, he travelled to the Center for Man and Aviation in Soesterberg, the Netherlands, to learn about the impact of oxygen deprivation on Dutch pilots at high altitude. This proved to be the inspiration for his new, ideal form of execution: Nitrogen Hypoxia, recently championed by Alabama, Mississippi and Oklahoma. It’s as if nobody realised the difference between some carefully controlled and voluntary play acting in a Dutch air force base and the state systematically putting a human being to death against his will.

Each execution method the US comes up with seems worse than the last. Over the past 150 years, executioners have relied on a variety of inhumane, scientifically dubious technique to kill people, starting with the Electric Chair. On 6 August 1890, William Kemmler became the first person executed in New York’s Electric Chair. It’s inventor, Alfred Southwick, a dentist and a Quaker, promised that electricity would provide a quicker and more reliable death — and yet the horror stories began with its first victim. The New York Times reported that as Kemmler was cooked to death “an awful odor began to permeate the death chamber, and then, as though to cap the climax of this fearful sight, it was seen that the hair under and around the electrode on the head and the flesh under and around the electrode at the base of the spine was singeing”. The Chair was used for a century after that: I was a witness to the phenomenon myself, and I can still see a black-and-white image of my client Nicky Ingram as he was tortured to death in Georgia on 7 April 1995.

Next up was the gas chamber, first used by Nevada in the case of Gee Jon on 8 February 1924. It would only be a few years before the Nazis brought this method into disrepute, though it persisted in the US past the execution of my client, Edward Earl Johnson, in 1987. At the time, what upset the audience as much as anything was footage of the jocular guards experimenting by gassing a black bunny rabbit, bred on the Parchman Penitentiary grounds, to stand in for Edward. I subsequently sued (and won) on the anniversary of the liberation of Auschwitz to put an end to the Chamber in Mississippi.

Starting in the early Seventies, the States were turning to lethal injection as a supposedly kinder, gentler form of judicial killing. This could hardly be barbaric, we were told, when it was used to put down animals. However, it gradually became clear that executions were being botched more often than ever. Joe Nathan Jones once held the record, as his Alabama execution on 28 July 2022 took more than three hours rather than the advertised seven and a half minutes. But four months later, Alabama would fail to kill Smith at all.

Why does nobody stop these barbaric executions? One reason is surely that there are only two groups of people who voluntarily take part in executions, and neither of them is going to resist the status quo. The first group is comprised of those who have chosen a profession — “Corrections” — where it is their job, done perhaps without enthusiasm, but nevertheless guided by the notion that society has the right to take the lives of convicts. These people are not zealots, and are hardly going to devote themselves to a lifetime of scientific experiment to come up with the perfect execution method.

The second, darker group is made up of those who enjoy the sensation of being part of a societally sanctioned killing. In the words of Mississippi Warden Donald Cabana as he oversaw Edward Johnson’s execution: we might “worry about people who are eager to stand in line to methodically strap somebody into a chair and kill them”.

Such people do spend their lives pondering how to execute someone, but they do not necessarily have a great regard for facts. The journalist Peter Hitchens, who was in the witness room with me when Nicky Ingram was seared to death, thought the Chair was “just and humane”, even though by the time he wrote his apologia the conservative Georgia Supreme Court had deemed it to be a “cruel and unusual punishment”. He decreed that Nicky was an unrepentant murderer although he never bothered to meet him. And his strange argument for killing my client and friend was rooted in a belief in God, and the hope that death would give Nicky “regard for his immortal soul”.

These kinds of people downplay the barbarism of any execution method because of a zealous belief in their cause. In part, they do this by creating an “Execution Protocol” that is meant to show the process as somehow generous to a bestial criminal. The prisoner gets a last meal (much like Christ’s Last Supper, perhaps), a last statement, and a final prayer. But this is all fluff. Ingram said he didn’t want to eat as they were about to kill him, but that he would like a last packet of cigarettes. The prison initially refused, pointing out that cigarettes were bad for his health — until I ridiculed this before the assembled media.

But the greater part of the “protocol” is specifically designed to protect the witness, not the victim, because the executioner knows it is going to be horrible. The ghastly leather flap they lowered over Nicky’s face before they applied 2,400 volts to his head was not meant to make his death easier — it plunged him into a fearful darkness. It was, rather, meant to hide the look on his face from the witnesses.

The three-drug “protocol” used in lethal injection is a rather more subtle variation on this theme. It begins with a fast-acting sedative (originally sodium thiopental) that is meant to render the prisoner unconscious. Then comes Pancuronium bromide, intended to cause muscle paralysis. Third, a poison, potassium chloride, to do the actual killing. Why the paralytic agent? It is for the spectator: like the leather flap, it masks the pain the prisoner is feeling when the sedative fails to work — the poison is excruciatingly painful, but if the prisoner cannot move, nobody is any the wiser.

It is not just the design of the system but its application that creates a “botch”: some say Jesse Tafero’s head caught fire in Florida’s Ol’ Sparky because the guards did not like him, and intentionally failed to dip the sponge in its conductive saline solution. With the “needle” there is a more systemic problem: the Hippocratic Oath means that no medical professional — sworn to “do no harm” — can take part. Yet it is surprising how hard it is for an amateur to find a vein. In his documentary, Portillo shares a beer with Dr Jay Chapman, the former Oklahoma State Medical Examiner, who is credited with creating the lethal injection system. Portillo confronts him with the evidence of serial botched executions. “Well, I never imagined idiots would be doing it,” he said.

The saddest element of the story is that the true advocates of capital punishment welcome a “botched” execution. Towards the end of Portillo’s documentary, a leading proponent, Professor Robert Blecker of New York Law School, says: “If the killer who smashes their [sic] victim on the side of the head with a hammer and slits their throat goes out on a euphoric high, is that justice? Punishment is supposed to be painful. … A painless end is inhumane to the victim of the crime.”

I don’t like the term “criminal”. It is a word we use to try to make ourselves feel superior to another group, yet we none of us would look very good if we were assessed based solely upon the nastiest thing we ever did in life.

Ultimately, as a society, the US is deeply ambivalent about executions, with support for the death penalty falling from almost 90% in the Eighties to around 50% today. This is why we no longer carry them out in public, and we now do our dirty business in the dark of night. Those who lack ambivalence are not people whom a civilised society would want to be in charge. Everyone would be better off if we renounced the fantasy that if we kill people, it will stop people from killing people.

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