Baze v. Rees

 

Q & A

 

16. There have been news reports about “botched” lethal injection executions.  What are some examples and what does this term mean in the context of the Baze case?

 

Executions can be “botched” in a number of ways.  Some botched executions occur in a manner that causes the individual to suffer excruciating and protracted pain that is apparent to witnesses and documented by post-mortem evidence such as photographs and autopsy reports.  These include executions in which execution personnel are unable to insert the IVs, leading to protracted and repeated attempts to do so, or even “cutdowns,” which are surgical incisions designed to locate veins under the skin; executions in which one or both IVs fail, causing the drugs to be injected into the tissue surrounding the vein; or executions in which the administration failure is so complete that the inmate is not paralyzed and is able to express pain.  However, focusing solely on these cases, which have garnered significant publicity, misses two of the crucial points about the foreseeable risk of torturous pain and suffering.   First, the administration of the paralytic agent – pancuronium bromide – hides evidence of consciousness and makes it impossible for the inmate to convey the fact he is experiencing suffocation from the pancuronium and searing pain from the potassium chloride.  Some executions may be botched in a manner that renders the pain suffered by the inmate invisible to witnesses, such as when an inmate receives sufficient pancuronium to paralyze but insufficient thiopental to cause surgical anesthesia.  Second, many states fail to record vital signs or collect post-mortem data that could provide clues as to whether executions were humane.  Therefore the known incidence of botched executions almost certainly understates the actual incidence. 

The following are examples of known botched executions, which are more fully developed in the Brief for Petitioners, at 20-24, and in the amicus curiae briefs, including the Brief for Michael Morales, Michael Taylor, et al., at 22-23 and 27-28.  

Arkansas

  • During the 1992 execution of Ricky Rector, executioners were unable to find a vein in his arm.  They made a two-inch incision in his arm in an attempt to locate a vein.  Rector was heard moaning throughout the 50 minute execution.  Joe Farmer, Rector, 40, Executed for Officer’s Slaying, Arkansas Democrat-Gazette, Jan. 25, 1992, at 1.

Florida

  • During the December 2006 execution of Angel Diaz in Florida, execution personnel made grievous errors in inserting the IVs in Mr. Diaz’ arms, making it impossible for the lethal drugs to be delivered into his blood stream.  They also departed from the lethal injection protocol, resorting to an improvised second dose of the lethal chemicals without troubleshooting the failure of the first dose or alerting the Warden to the problem.  Those errors led to the disastrous and torturous 34 minute execution of Mr. Diaz, which are described in the Brief for Petitioners, at 20-21, and in the Amicus Brief for Michael Morales, Michael Taylor, et al., at 32-33, citing the Governor’s Comm’n on Administration of Lethal Injection, Final Report with Findings and Recommendations (Mar.1, 2007); Proceedings of the Governor’s Comm’n on Lethal Injection (Feb. 12, 2007) [“Governor’s Comm’n”] and the Summary of the Findings of the Dep’t of Corrections Task Force Regarding the Dec. 13, 2006 Execution of Angel Diaz [“Diaz Findings”].

  • While administering the thiopental to Mr. Diaz, the executioners felt resistance in the primary IV line and switched to the back-up line.  They also felt resistance in the back-up line. Instead of following the protocol for administering the second dose, and without investigating the cause of resistance in both IV lines, the executioners injected the pancuronium and potassium – the second and third drugs.  See Diaz Findings, at 5; Amicus Brief for Michael Morales, Michael Taylor, et al., at 32; Brief for Petitioners, at 21.  Though Florida did not collect the data or undertake the monitoring that would enable a conclusive determination as to whether Mr. Diaz suffered, the conclusions of the investigation that followed Mr. Diaz’s execution strongly suggest that Mr. Diaz, who exhibited gasping behavior consistent with partial paralysis from the pancuronium, was conscious when the potassium chloride was administered and that he suffered the torture of being conscious while he asphyxiated and suffered the pain of cardiac arrest. See Governor’s Comm’n, at 97-98, 101; Diaz Findings, at 5; Amicus Brief for Michael Morales, Michael Taylor, et al., at 32-33; Brief of Petitioners, at 20-21.

  • The investigation, as well as Mr. Diaz’ autopsy, explained why the executioner felt resistance in the IV lines.  Both IVs had pierced the veins in Mr. Diaz’ arms, causing the drugs to be pushed into the soft tissue and slowing the absorption rate.  See Diaz Findings at 5.  The drugs in Mr. Diaz’ soft tissue caused 12-inch chemical burns on both arms where the drugs had been injected into the soft tissue.  See Governor’s Comm’n (Postmortem Exam of Angel Diaz, at 1); Amicus Brief for Michael Morales, Michael Taylor, et al., at 32-33; Brief of Petitioners, at 21.  The Governor’s Commission found that the execution team members were not properly trained to do their jobs.  See Governor’s Comm’n, Final Report with Findings and Recommendations (March 1, 2007), at 8; Amicus Brief for Michael Morales, Michael Taylor, et al., at 33.

Ohio

  • During the 2006 execution of Joseph Lewis Clark in Ohio, technicians struggled to place the IVs in Mr. Clark’s arms, sticking him 19 times with large-gauge IV needles, and taking more than 20 minutes to set the IVs.  Several minutes after the executioners started pushing the lethal drugs, Mr. Clark’s vein collapsed and his arm began to swell, indicating that the drugs were being pushed into the flesh of his arm, rather than his blood stream.  Mr. Clark raised his head off the gurney and repeatedly stated, “It don’t work.” The technicians closed the curtains that separated the witnesses and worked for 30 additional minutes to replace the IVs.  Witnesses reported hearing Mr. Clark moan and cry out from behind the closed curtains.  See Brief for Petitioners, at 22; Amicus Brief for Michael Morales, Minchael Taylor, et al., at 33-34.

  • Overall, Mr. Clark’s execution took 90 minutes.  The autopsy revealed that the lethal chemicals had been injected outside of Mr. Clark’s veins and cited “inadequate skills of the technical personnel involved” as the reason for the error.  The murder victim’s brother, who was a witness to the execution, publicly stated, “Nobody should have to die a horrible death.”  See Autopsy Report for Joseph Clark, Dr. L.J. Dragovic, Office of the Medical Examiner, Oakland County, Michigan (Aug. 15, 2006); Adam Liptak, Trouble Finding Inmate’s Vein Slows Lethal Injection in Ohio, N.Y. Times, May 3, 2006; John Mangels, Condemned Killer Complains Lethal Injection “Isn’t Working,” Cleveland Plain Dealer, May 3, 2006; Brief for Petitioners, at 22; Amicus Brief for Michael Morales, Michael Taylor, et al., at 33-34.

Oklahoma


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