Article
Amicus Curiae Blog (May 19, 2022)

Botched Statistics on Botched Executions: Refuting Austin Sarat’s Claims

By Michael Conklin*

Introduction

In 2014, Austin Sarat presented findings on the botch rates of various execution methods.1 Sarat’s statistics on death penalty botch rates have been cited by law review articles promoting various policies, including the use of firing squads over lethal injections.2 The statistics have also been cited by the United States Supreme Court.3 The conclusion of Sarat’s statistics is that there exists a 0% botch rate for firing squads and a 7.12% botch rate for lethal injection.4 These frequently cited statistics are—at best—highly misleading. The claimed firing squad botch rate leaves out blatant examples of botched firing squad executions.5 Conversely, the lethal injection statistic arbitrarily implements a definition of “botched” execution so expansive as to render the ultimate result completely meaningless. Examples of what Sarat considers a “botched” lethal injection include inmates who resist,6 difficulties inserting the IV,7 passage of fourteen minutes before official death is declared,8 and prison officials opening the curtain too early.9 This essay documents Sarat’s inaccurate statistics and considers potential motivations for promoting the resulting misinformation.

Lethal Injection Botch Rate Statistics

In order to reach the reported 7.12% botch rate for lethal injection,10 Sarat includes numerous examples that clearly do not meet the common-sense definition of what constitutes a “botch.” The following is a sampling of inmates whose lethal injection executions were deemed to be “botched,” along with Sarat’s justification why:

  • Raymond Kinnamon, December 11, 1994: “While the drugs were administered, Kinnamon rose up from the gurney and tried to free his hands from their restraints.”11
  • Robert Drew, August 2, 1994: “Drew coughed and gasped and tears streamed down his face as the needle was inserted into his arm.”12
  • Desmond Jennings, November 16, 1999: “It took a team of five specially trained men to bring an uncooperative Jennings from his cell to the death chamber and strap him to the gurney.”13
  • William Garner, July 13, 2010: A prison official opened the curtain too early.14
  • Robert Streetman, January 7, 1988: After a last-minute 4-4 Supreme Court deadlock on a request for a stay, state officials halted the execution until receiving confirmation from the state Attorney General’s office and the Governor’s office that no appeals were pending.15 Then, the execution began and was completed without incident.16
  • Lewis Williams, January 14, 2004: The inmate “[l]oudly proclaim[ed] his innocence [and] resisted prison guards’ efforts to transport him from his cell and strap him to the gurney.”17

Out of the seventy-five lethal injections that Sarat claims were “botched,” sixty-four of them include no indication of a painful death beyond the discomfort inherent in administering an IV. And this is not to say that the remaining eleven examples are accompanied by strong evidence of a painful execution. Rather, these eleven examples just provide some indication that could possibly be interpreted as the inmate having felt pain.18

Many of the executions that Sarat labels as “botched” are based solely on his determination that too much time passed before the final determination of death.19 Even time periods as short as fourteen minutes—or as Sarat refers to it, “a full fourteen minutes”—are labeled “botched.”20 This is highly peculiar because physician-assisted suicide, which typically uses the same drugs as a lethal injection,21 takes fifteen to twenty minutes before death is pronounced.22

Many other executions Sarat categorizes as “botched” simply involve issues inserting the IV.23 For example, the following is the entirety of Sarat’s justification for why Woolls’s execution was “botched”: “A drug addict, Woolls helped the execution technicians find a useable vein to insert the needle.”24

Firing Squad Botch Rate Statistics

Sarat’s claim that death by firing squad has a flawless 0% botch rate is as questionable as the 7.12% botch rate for lethal injection.25 With firing squads, instead of claiming executions that were conducted without incident are “botched,” Sarat ignores clearly botched executions. One such example is the 1951 firing squad execution of Eliseo Mares, which is absent from Sarat’s statistics. Mares’s four executioners all shot into the wrong side of his chest.26 He eventually died from blood loss.27

Real-Life Decisions

The belief that firing squads are more desirable than lethal injection is only held by people like Sarat, who do not have to face the consequences of that opinion. People on death row who have an actual choice of the firing squad do not find Sarat’s evidence persuasive. Death row inmates in the three states that currently allow firing squads (Oklahoma, Mississippi, and Utah)28 overwhelmingly prefer lethal injection to firing squads.

Oklahoma does not contain a single example of anyone choosing death by firing squad between 1915–2021.29 In the last forty years, no inmate in Mississippi has chosen the firing squad.30

In Utah, two people chose to be executed by firing squad in the last forty years,31 but their decisions were not due to the belief that the firing squad is less painful than lethal injection. Ronnie Lee Gardner chose the firing squad based in part because of his Mormon faith.32 The Mormon doctrine of “blood atonement” requires the shedding of blood for forgiveness.33 The other Utah inmate to choose the firing squad appears to have done so in an effort to embarrass the state.34 In the last forty years, there is not a single example of an inmate choosing the firing squad over lethal injection based on a pain-mitigation strategy.35

Potential Motivations

This essay is careful not to make any ultimate judgments as to why Sarat underreports botched firing squad executions and overreports lethal injection botched executions.36 However, the determinations that Sarat made that lead to these results are too numerous, too consistent, and too blatant to attribute to chance. The potential motivations for why this particular outcome was the desired result is therefore a worthy topic of discussion. Sarat’s distorted statistics certainly support modern advocacy for the firing squad over lethal injection.37 This is illustrated by the strong reliance on Sarat’s statistics by those who advocate for the firing squad over lethal injection.38

Potential advantages to the death penalty abolitionist movement—of which Sarat is a strong proponent39—stem from the general public’s lack of support for the firing squad.40 Therefore, if lethal injection is significantly worse than the firing squad, then it stands to reason that the vast majority of the public would be in favor of abolishing both practices.41 As Ninth Circuit Court of Appeals Judge Alex Kozinski explains, “If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”42 It is easy to see how—given the very low support for firing squads by the general public43—Sarat’s statistics could be an effective tactic for death penalty abolition. While Sarat’s ultimate motivation for distorting the statistics to make the firing squad appear better in comparison to lethal injection is ultimately unknowable, it does conveniently coincide with this abolitionist strategy.

Conclusion

Regardless of his motivations, Sarat’s botch rate statistics are highly inaccurate. The propagation of such statistics serves to hinder—not help—the death penalty abolitionist movement. This is because it causes observers to perceive the abolitionists’ case as weak—otherwise, why would they have to resort to the reliance on inaccuracies? It also likely causes observers to question the accuracy of other legitimate evidence provided by death penalty abolitionists. Finally, Sarat’s statistics could lead to the consequence of inmates who prefer lethal injection being subjected to the firing squad.

Footnotes

* Powell Endowed Professor of Business Law, Angelo State University.↩︎

  1. Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty 177–78 (2014). ↩︎
  2. Stephanie Moran, A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, 74 U. Miami L. Rev. 276 (2019); Deborah W. Denno, The Firing Squad as ‘A Known and Available Alternative Method of Execution’ Post-Glossip, 49 U. Mich. J.L. Reform 749, 769 (2016); P. Thomas Distanislao III, A Shot in the Dark: Why Virginia Should Adopt the Firing Squad as Its Primary Method of Execution, 49 U. Rich. L. Rev. 779, 788 (2015); Bryce Buchmann, Humane Proposals for Swift and Painless Death, 19 Rich. Pub. Int. L. Rev. 153, 159 (2016). ↩︎
  3. Glossip v. Gross, 576 U.S. 863, 976-77 (2015) (Sotomayor, J., dissenting) (“But there is evidence to suggest that the firing squad is significantly more reliable than other methods, including lethal injection using the various combinations of drugs thus far developed. See A. Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty . . . .”). ↩︎
  4. Sarat, supra note 1, at 177. ↩︎
  5. See id. ↩︎
  6. Id. at 202–03. ↩︎
  7. See id. ↩︎
  8. See infra note 18. ↩︎
  9. See infra note 14. ↩︎
  10. Sarat, supra note 1, at 177. ↩︎
  11. Id. at 202–03. ↩︎
  12. Id. at 202. ↩︎
  13. Id. at 205. ↩︎
  14. The notion that opening the curtain too early constitutes a “botched” execution is so absurd that the entirety of Sarat’s justification is included here to prove that this essay did not omit any significant piece of information:

    Nine minutes after the lethal chemicals entered Garner’s veins, prison officials opened the curtains around his body. This usually signals the end of an execution and the announcement of the time of death. However, the coroner said he heard “faint heart sounds.” Prison officials waited another five minutes before pronouncing Garner dead. Prison officials said they would reexamine the procedure for determining when the curtain is pulled and death is determined.

    Id. at 210. ↩︎
  15. Id. at 199; Texas Burglar Who Shot a Woman to Death for Her $1 is Executed, N.Y. Times (Jan. 8, 1988), https://www.nytimes.com/1988/01/08/us/texas-burglar-who-shot-a-woman-to-death-for-her-1-is-executed.html [https://perma.cc/58ZM-6C4Y]. ↩︎
  16. Sarat, supra note 1, at 199. ↩︎
  17. Id. at 206–07. ↩︎
  18. One such example is that of Raymond Landry. While he was behind the execution curtain, “witnesses reported ‘at least one groan.’” Id. at 199. Given the context of the description, it is unclear if the groan was attributable to the re-insertion of an IV, from pain caused by the lethal injection drugs, or from a general displeasure with being executed. To be generous, this description—and other ambiguous descriptions—were included in the list of eleven where the inmate might have felt pain from the execution. ↩︎
  19. Id. at 179–210. To clarify, in these examples there is no indication that anything in the execution went wrong. For example, the following is the entirety of Sarat’s justification for why the November 11, 1984, execution of Velma Barfield was “botched”: “It took fourteen minutes for her to die after the drugs were first administered.” Id. at 198. ↩︎
  20. Id. at 207. ↩︎
  21. See generally State-by-State Lethal Injection Protocols, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/lethal-injection/state-by-state-lethal-injection-protocols [https://perma.cc/25XW-PZ6L]. ↩︎
  22. Paul Taylor, Can You Describe a ‘Typical’ Assisted Death?, The Globe & Mail (Apr. 10, 2016), https://www.theglobeandmail.com/life/health-and-fitness/health-advisor/how-does-assisted-dying-work/article29572737/ [https://perma.cc/4U6B-9R8N]. ↩︎
  23. See Sarat, supra note 1, at 179–210. ↩︎
  24. Id. at 199. ↩︎
  25. Id. at 177. ↩︎
  26. Denno, supra note 2, at 787. ↩︎
  27. Id. ↩︎
  28. Dustin Barnes, What Methods of Execution Are Still in Practice[] in the United States?, Tennessean (Oct. 9, 2018, 1:24 PM), https://www.tennessean.com/story/news/crime/2018/10/09/methods-execution-state-electric-chair-firing-squad-hanging-gas-chamber/1576763002/ [https://perma.cc/4S4R-8RWF]. ↩︎
  29. Death Row, Okla. Dep’t Corr., https://oklahoma.gov/doc/offender-info/death-row.html [https://perma.cc/AEC3-HWAJ]. But see Two Oklahoma Death Row Inmates Choose Firing Squad to Delay Execution, Guardian (Jan. 13, 2022), https://www.theguardian.com/us-news/2022/jan/13/oklahoma-death-row-inmates-choose-firing-squad-alternative [https://perma.cc/DB8X-T3FX]. ↩︎
  30. Mississippi and the Death Penalty, Miss. Dep’t Corr., https://www.mdoc.ms.gov/Death-Row/Pages/Mississippi-Death-Penalty.aspx [https://perma.cc/62SW-K9T9]. ↩︎
  31. U.S.A. Executions 1977-Present, DeathPenaltyUSA, https://deathpenaltyusa.org/usa/state/utah.htm [https://perma.cc/N98V-T7N6]. ↩︎
  32. Amy Donaldson, Inmate Threatens to Sue if State Won’t Let Him Die by Firing Squad, Deseret News (Feb. 9, 1996, 12:00 AM), https://www.deseret.com/1996/2/9/19224129/inmate-threatens-to-sue-if-state-won-t-let-him-die-by-firing-squad [https://perma.cc/LH3W-RN2F]. ↩︎
  33. Denno, supra note 2, at 788–89, (“A number of scholars have traced the use of the firing squad in Utah to the Mormon religion’s concept of “blood atonement.”). Note that the Mormon church officially revoked the teaching of blood atonement in 1978. Id. at 789. ↩︎
  34. A Look at Utah’s Most Infamous Executions, KSL.com (June 13, 2010, 9:00 AM), https://www.ksl.com/article/11134823 [https://perma.cc/DSQ8-UZME]. He also refused to be sedated. Id. ↩︎
  35. See Donaldson, supra note 32 and KSL.com, supra note 34. ↩︎
  36. In a sense, Sarat’s motivations are irrelevant in that the harms caused by misinformation occur regardless of the source’s motivations. ↩︎
  37. See supra note 2. ↩︎
  38. See id. ↩︎
  39. Austin Sarat & Dennis Aftergut, Ending the Federal Death Penalty Would Bolster Our Democracy, The Hill (Oct. 19, 2021, 7:30 AM), https://thehill.com/opinion/judiciary/577301-ending-the-federal-death-penalty-would-bolster-our-democracy [https://perma.cc/2755-7V39]. ↩︎
  40. Majority of Americans Believe Alternatives to Lethal Injection are Cruel and Unusual, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/public-opinion-polls/national-polls-and-studies [https://perma.cc/VG5L-5NMT] (reporting that 53% of Americans view the firing squad as cruel and unusual while only 16% view lethal injection as cruel and unusual). ↩︎
  41. See id. ↩︎
  42. Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, J., dissenting). ↩︎
  43. See Sarat & Aftergut, supra note 39. ↩︎