A botched drug cocktail protocol is to blame.
David Earl Miller will face the death penalty in Tennessee later this week, and like a growing number of inmates, he’s asking for electrocution over lethal injection.
Miller sent a handwritten note marked “URGENT” to the warden over at Riverbend Maximum Security Institution, mere weeks before his sentence is to carried out on December 6. The 61-year-old man was found guilty of the 1981 murder of Lee Standifer in Knoxville, according to the Tennessean.
Miller is the second death row inmate this year who chose the electric chair over lethal injection, and his wish appears to play out amid two big factors: Botched executions have gotten national attention, and challenges either to the death penalty itself or to specific forms of execution are on the rise.
In any case, it is a definitely a provocative move. Electrocution was chosen in 2018 by a Tennessee inmate for the first time in 11 years, and no other state has used it since 2013.
As painful as it is, though, electrocution lasts roughly 35 seconds. Lethal injection may take up to 18 minutes to kill an inmate.
“It’s a little bit surprising to me that they’d prefer electrocution,” said Deborah Denno, a death penalty expert and professor at Fordham University. “I really see that as a huge statement against lethal injection because electrocution has had its own problems.”
Lethal injection was first enacted in the United States in 1977, but it wasn’t put to use on death row inmates until 1982. According to Denno, lethal injection protocol has been “consistently problematic” since its onset and has only gotten worse in terms of accounting for failed executions over the years.
In Alabama, some 51 inmates said they’ve chosen to die in the nitrogen gas chamber rather than succumb to lethal injection since granted the option in March. In Texas, a man accused of a series of rapes asked for the firing squad before eventually dying of a drug cocktail earlier this year.
In Tennessee, inmates have neither option (those with crimes committed before 1999 can still choose the electric chair, though), and some have legally challenged the constitutionality of lethal injection over what appears to be a rising concern over botched executions.
European pharmaceutical companies, which manufactured the main lethal injection drugs used in the US and exported them across the world, stopped supplying them to North America circa 2009, which created a massive shortage. Ever since, the US Department of Corrections has faced difficulties acquiring the proper cocktails, relying on cheap substitutes instead.
In comes midazolam. According to modern lethal injection protocol, midazolam (a sedative) is the first of three drugs given to death row inmates. It’s meant to render them unconscious so the other two (a muscle paralytic and a heart-stopping drug) can act on the sentenced men and women without them experiencing any pain.
But 7.1 percent of the roughly 1,000 lethal injection executions since 1890 were botched — many due to midazolam failing to act as a proper sedative.
“It is not able to knock somebody out and keep them unconscious if [the inmates] are subsequently exposed to painful stimuli,” said Rob Dunham, executive director at the Death Penalty Information Center. “There is no question that the other drugs are going to produce pain … We know from botched executions that the description of being burned alive is physically accurate.”
Denno said she’s heard inmates who survived lethal injection describe the experience as “sticking a hot poker in your stomach.”
Of course, the failed use of midazolam is not the sole contributing factor in botched sentences. Denno and Dunham told me that, in addition to the ineffective drugs, both the physicality of the inmates and the lack of proper training and procedure carried out during the executions can explain the number of inmates who end up surviving a death sentence.
“A ‘typical’ botch is an inability to follow the protocol,” Dunham said. “So, if you struggle to find a vein, that’s a botch. If you find a vein and you administer the drugs and the execution is problematic because it’s an inappropriate drug, that’s a botched protocol.”
On Columbus Day this year, the Tennessee Supreme Court ruled that lethal injections will remain the preferred method of execution for people on death row, delivering a major blow to some 32 inmates who’ve protested the drug cocktails violate the US Constitution’s Eighth Amendment, which orders that no “cruel and unusual punishments” be inflicted on prisoners.
Tennessee Chief Justice Jeffrey S. Bivins wrote in the majority opinion: “We conclude that the plaintiffs failed to carry their burden of showing availability of their proposed alternative method of execution … As a result, we need not address the plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe pain.”
And yet, Tennessee inmates are not alone in the fight. Many death penalty cases have come before the Supreme Court just this year, a matter that’s put America’s highest court — and its recently confirmed controversial justice — in the spotlight.
“This all creates a perfect storm of extraordinary ineptitude,” Denno said. “The Supreme Court … is embarrassed that it’s taken on as many [death penalty cases] as it has without any resolution. It wants them to go away.”
But the Supreme Court’s apparent incompetence has driven state lawmakers to take a stronger stance on capital punishment.
Since the turn of the century, eight states have moved to abolish capital punishment for all crimes, a possible outcome of the long-standing legal battle that argues lethal injection — and electrocution, for that matter — is unconstitutional.
What’s more, support for the death penalty has drastically fallen, with 54 percent of Pew survey respondents approving of the sentencing, in stark contrast to 78 percent just over two decades ago.
According to Dunham, Americans’ approval has definitely swayed state legislatures (especially left-leaning ones like New York, Connecticut, and, most recently, Washington) to move away from capital punishment sentences, a trend that’s “certainly” also been affected by the high number of botched lethal injection executions.
And yet, in Tennessee, inmates are still likely to choose electrocution in the years to come as a form of protest.
“It really tells us about the state of the death penalty in the United States,” Dunham said. “It’s astonishing that we’ve come to this.”