Lain on Secrets of the Killing State

Professor Corinna Barrett Lain's new book Secrets of the Killing State: The Untold Secret of Lethal Injection (New York: New York University Press) came out this week. It is a tour de force, the best single volume about lethal injection and one of the best recent books about the death penalty more generally. It is also timely. While many of President Trump's other actions have (understandably) generated more recent attention, he did issue a Day One Executive Order encouraging more executions at both the federal and state level. 

It feels odd to say about a scholarly book about the death penalty, but Secrets of the Killing State is fun. Lain is a gifted storyteller. The book provides a lot of information about lethal injection, but it reads more like a story. Secrets of the Killing State is a great resource for lawyers working on lethal injection cases, but it's also an accessible, easy read for lay people who want to learn more about the topic.  

Lain begins with the misunderstanding that lethal injection is painless, a slight pinch followed by forever-sleep. She systematically discredits that view and explains how lethal injection often inflicts agony. The reasons are complex, but they boil down to the fact that most death-penalty states don't know what they're doing. Yes, some states are more competent than others, and some protocols are worse than others, but, by and large, state officials lack the wherewithal to design and implement a "safe" lethal injection protocol. (By "safe," I mean a lethal injection protocol that does not create a significant risk of excruciating pain.)

One consequence of states' incompetence is that many states have selected, in Lain's words, "torturous drugs." The most notorious lethal injection protocol is the three-drug protocol. It's what all lethal-injection states used from the late 1970s until around 2010, when some states started experimenting with other protocols. The three-drug protocol includes an anesthetic (to put the inmate to sleep and anesthetize him to the suffering caused by the other drugs), a paralytic (to paralyze the inmate), and potassium chloride (to stop the heart). Potassium chloride, however, is excruciating in the under-anesthetized, so the humaneness of the protocol depends on the successful delivery of the anesthetic. For a variety of reasons, though, it is doubtful that the prisoner will be sufficiently anesthetized. And, just to make things even worse, the paralytic conceals whatever suffering the prisoner may be enduring, so observers might mistake a torturous execution for a peaceful one. As a result, states are unlikely to improve their protocols before future executions.

Why are there reasons to doubt that the first drug will fully anesthetize the inmate? One reason, as Lain discusses, is that states sometimes select the wrong drug. For example, some states use midazolam as the first drug, even though midazolam is not an anesthetic. Doctors do give midazolam to help reduce anxiety prior to anesthesia, but midazolam itself has not been approved as a sole anesthetic against the kind of excruciating pain potassium chloride inflicts. Nevertheless, some states have used--and continue to use--midazolam to begin their three-drug protocol, and the U.S. Supreme Court even upheld one of those protocols in Glossip v. Gross. The result is that courts give states wide leeway to do what they want, and many states take advantage, utilizing protocols that create serious risks of excruciating pain. In fairness, some states do use one-drug protocols that, while not without dangers, pose a much smaller risk of excruciating pain than the three-drug protocol. But many states retain the three-drug protocol, including several that carry out executions on a regular basis.

Even when states use "safer" first drugs, such as barbiturates that can anesthetize against excruciating pain, they often employ unqualified individuals to implement their protocols. Lain has consecutive chapters entitled "An Exceedingly Delicate, Error-Prone Procedure" and "Inept Executioners." The two topics fit well together. Because lethal injection procedures are delicate and error-prone, competent personnel are necessary to minimize the risk of suffering. Most states, however, don't employ competent personnel to perform the many tasks lethal injection requires, such as preparing the drugs, inserting the catheter into the prisoner's veins, monitoring anesthetic depth, and deciding when to "push" (that is, inject) the drugs. States, in other words, usually ask their employees to perform a very complicated, delicate task for which they are not qualified. No wonder botched executions are quite common. 

As Lain writes, states' responses to these kinds of critiques have mostly been to weave a web of secrecy around their executions. States justify these statutes on the theory that executions' participants, including drug suppliers and execution team members, may suffer from harassment and even violence if their identities become known. States may have a legitimate interest in protecting against that sort of harassment, but, as Lain points out, the record of such threats of violence is scarce. Even more importantly, state secrecy statutes go much further than necessary to protect against harassment and violence. Indeed, state secrecy laws insulate aspects of the execution procedures that are necessary to evaluate whether they are consistent with the Eighth Amendment. For example, states often refuse to allow their drugs to be tested for contamination and other flaws, even though that testing would not expose the identity of anybody. (I explore the secrecy issues in a lot more detail here.) The result is that states conceal most details of their execution protocols, which in turn makes it much harder for prisoners to protect against excruciating executions.  

Towards the end of her book, Lain identifies a core irony in her story. States adopted lethal injection to save the death penalty--to make it less messy and more palatable. Lethal injection instead, she argues, "has become the latest reason to get rid of [capital punishment]." Public support for the death penalty has sharply declined over the past quarter century. Numerous factors explain this decline, including, among others, arbitrariness, racial bias, error, delay, and cost. Over the past decade, though, another significant factor has been high-profile problems with lethal injection. States have had difficulty getting the drugs, resulting in prolonged execution delays. States have badly botched executions--and continue to do so at high rates. 

Some states have even begun to move away from lethal injection, adopting alternative methods of execution, including the firing squad. This year, South Carolina has used the firing squad already twice. The fact that South Carolina and other states have adopted the firing squad--a more overtly violent form of punishment--is partially a response to lethal injection's many problems. And the fact that some inmates choose the firing squad over lethal injection highlights that capital inmates have become aware of lethal injection's terrible risks--in part thanks to the work of scholars like Lain.

I offer a more comprehensive discussion of Secrets of the Killing State in my book review, "The Court and the Killing State," which is forthcoming in the Michigan Law Review. (I plan to blog more about Lain's great book once I've posted a draft of the review on SSRN.) The bottom line, though, is that this is a great book for anyone interested in the death penalty, the Eighth Amendment, or larger questions of justice in American society.