Botched Execution in Oklahoma Is Part of a Pattern, Says Amherst Scholar

Amherst College

Austin D. Sarat, a professor of jurisprudence and political science at Amherst College, and his students have reviewed how 9,000 people were put to death in the United States from 1890 to 2010. "Is 3 percent an acceptable error rate for execution?" he asks.
May 01, 2014

Clayton Lockett took 43 minutes to die, subject to a failed lethal injection that left him writhing on the gurney. The "line had blown," a prison official said, failing to deliver the drugs in the prescribed way. The inmate eventually died in the execution chamber, of a heart attack, after twitching, moaning, and attempting to rise.

That bungled execution in Oklahoma on Tuesday night—the second one in the United States this year—comes as no surprise to Austin D. Sarat, a professor of jurisprudence and political science at Amherst College. With his students, he has been studying executions gone wrong for the last few years, culminating in new book: Gruesome Spectacles: Botched Executions and America’s Death Penalty (Stanford University Press).

After a painstaking review of how 9,000 people were put to death in the United States from 1890 to 2010, Mr. Sarat and his collaborators found that about 3 percent of executions did not go as planned: Decapitations and failed strangulation during hangings. Burned flesh and multiple jolts of electricity with electrocution. Severe pain and slow deaths during lethal injections.

Each new advance in technology, he argues, promised a less-painful ending. But the evolution of the death penalty says more about our changing views of scientific progress and the fate of the guilty.

Ironically, lethal injection—the currently favored method—has been the most problematic of all, the research found: Seven percent of those executions have not gone according to plan.

In an interview with The Chronicle, Mr. Sarat said he was not surprised by how Tuesday’s execution unfolded, but he is surprised by what happened next. The governor of Oklahoma, Mary Fallin, stayed a second execution that had been scheduled to take place that night, amid a growing controversy over how lethal injections are being done today: namely, with secret suppliers and experimental combinations of deadly drugs.

"This may be a game changer," Mr. Sarat said, calling Mr. Lockett’s death "another stone on the scale tipping against capital punishment in the United States."

Following is an edited version of The Chronicle’s interview with Mr. Sarat.

Q. Why did you decide to write this book?

A. Much of the conversation in the United States about capital punishment is about the fate of the innocent. I think that’s enormously important, but in a way, that’s the easy case. The hard case is to think about the fate of the guilty. One way to think about that is when executions go wrong. But my interest was also to tell the story of the way in which the history of the death penalty in the United States has been largely a history of the relationship between ideas of scientific process and the ways in which we execute. The book is also about the way in which the hope for a technological fix leads us to imagine a world without error.

Q. You review thousands of executions in American history to pinpoint when and how various methods of capital punishment fail. How does this new information advance the debate about capital punishment?

A. The high moral arguments never changed anybody’s minds. No one was ever convinced by saying, ‘Oh, the death penalty is really about revenge.’ What’s changing people’s minds is that the machinery is broken. [The U.S. Supreme Court justice] Harry Blackmun said, "I will no longer tinker with the machinery of death." George Ryan, when he was governor of Illinois, commuted all of the death sentences in the state by saying, "I can’t know who is innocent and who is not."

The debate has moved from high moral principles to looking at how the system actually operates. That move has largely focused on the fate of the innocent. I hope my book takes that move and says, OK, let’s look at the fate of the guilty. Is 3 percent an acceptable error rate for execution? If I were to tell you that three out of every 100 airplane takeoffs result in a crash, you might think, Gee, that’s not an acceptable error rate.

Q. The number of people both sentenced and put to death has dropped significantly in recent years. Do you think capital punishment is on its way out?

A. I think we’re on the road to abolition. The question of the death penalty is no longer about those we execute; it’s about who we are. The traditional way to argue was to say it’s cruel or it violated human dignity. That focused on the fate of those we were executing. Now we’re focusing on what the death penalty is doing to central and important legal and political values in the United States.

Q. In the book, you ask why botched executions haven’t played a larger role in the public debate about capital punishment. And your conclusion—after reading hundreds of newspaper stories describing these executions—is that how the media portray botched executions is partly to blame. Why?

A. Almost uniformly during the course of the 20th century they were portrayed as near accidents. We argue that botched executions haven’t played a large role in the abolitionist struggle in the United States in part because they’re not seen as a systemic flaw. "Just another mistake," like an automobile accident. You don’t get rid of automobiles because of accidents.

The style varies, but the story tends to be pretty constant. In the early period, they sensationalized botched executions but tell what we call recuperative narratives. "Oh, it’s just because the hangman was drunk." There’s a parallel discourse in the way the legal system has thought about botched executions, in which the question of intent or accident plays a critical role.

Q. You make a point of describing the crimes people committed (Mr. Lockett was convicted of shooting a teenager and watching as she was buried alive). Why did you do that?

A. I think it’s really important in the conversation about executions to tell the story, to give a narrative that acknowledges both sides, to make the death penalty less of an abstraction. This was a real human being. This is what he did to other real human beings. This is what his life was like. We could have written a very different book, one that was much more academic. We wanted to produce a book that reached a wider audience and move the death penalty away from the abstractions toward an encounter of what really happens on the ground.