Last week, I suggested that there was no meaningful difference between a “botched” execution and a “proper” one. Today, I will develop this claim and offer some phenomenological support for it. The analysis that follows is rooted in my present geopolitical context – Tennessee – but the issues apply to the US death penalty as a whole. Thank you to Geoff Adelsberg for his research assistance on the legal cases, and to Kelly Oliver for sharing this research with me.
The Supreme Court case Baze v Rees (2008) upheld the constitutionality of the standardized three drug protocol, which consists of 1) sodium thiopental (an anaesthetic), 2) pancuronium bromide (a paralytic), and 3) potassium chloride (an electrolyte which, administered in the right way, stops the heart). Building on Louisiana ex rel. Francis v. Resweber, the Court argued that an “isolated mishap alone” (say, a botched execution) does not violate the Eighth Amendment’s ban on cruel and unusual punishment because “such an event, while regrettable, does not suggest cruelty or a “substantial risk of serious harm.”” Baze established a 3-part standard involving an assessment of “(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible.”
