Walter P. Loughlin
Walter P. Loughlin (Handout)

In a 1995 opinion denying Supreme Court review to a death row prisoner about to be executed, Justice Antonin Scalia remarked, in comparing the brutal murder of a young girl to the prisoner’s scheduled execution: “How enviable a quiet death by lethal injection.”1 No such serene passage to the hereafter occurred in the two-hour-long execution that took place on July 23 in Arizona, which Senator John McCain, well-qualified by experience as an abused prisoner of war, has characterized as torture.2

The spectacle in Arizona was at least the fourth botched execution this year. In January, an Oklahoma prisoner was heard to scream that he felt his body was burning as the lethal drugs were administered.3 One week later, an Ohio prisoner was seen to gasp for air for 25 minutes before being pronounced dead.4 Last April, again in Oklahoma, a prisoner writhed in pain as the drugs were pumped into his body tissue instead of his bloodstream. Prison officials halted the execution. The prisoner died of a heart attack.5 These are not isolated instances. It has been estimated that up to 7 per cent of lethal injection executions have historically gone awry for one reason or another.6

The most recent episodes have led to discussions about the scarcity of the lethal drugs previously thought to be reliable, whether execution protocols should involve a cocktail of two or three drugs and at what dosages, and the qualifications of those who preside at executions.7 We have even been treated to a prominent federal judge’s recommendation that the lethal injection regime be scrapped in favor of a return to the use of firing squads.

Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, while recently discussing various execution methods, rejected the guillotine as un-American, conceded that the electric chair, hanging, and the gas chamber can be subject to mishaps, and so fixed on the firing squad because, as Kozinski described, large caliber rifle bullets fired at close range can reliably produce death in an instant.8

Although this grisly catalog might seem, at first glance, to be akin to a Swiftian “modest proposal,”9 Kozinski was not being satiric. His point was that executions are brutal and savage events the nature of which ought not to be obscured by the use of drugs purporting to offer the promise of a humane death: “[F]iring squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. 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.”10

Discussion of execution pharmacology, enviable deaths by lethal injection, and the comparative efficiency of different methods of execution, is so dispiriting that it calls to mind Justice Harry Blackmun’s 1994 statement that “I no longer shall tinker with the machinery of death,”11 thereby joining the position taken earlier by Justices William Brennan and Thurgood Marshall that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments.12

Law and Executions

How did we reach the present state of affairs? In 1972, the Supreme Court struck down all existing death penalty statutes because they operated in an arbitrary and capricious manner and created an undue risk of racial bias. Because the death penalty appeared to be administered without consistent legal standards, Justice Potter Stewart remarked that a sentence of death was so random that it was cruel and unusual in the same way that being struck by lightning is cruel and unusual.13

Thirty-five states moved quickly to modify their capital punishment statutes to comply with the Supreme Court’s decision, primarily by bifurcating the trial of guilt or innocence from the trial of the penalty phase, and enumerating aggravating and mitigating factors that would guide the jury’s determination of whether a sentence of death should be imposed.14 Since 1976, when these modified statutes gained Supreme Court approval, more than 1,300 executions have taken place.15

Despite the fact that there are currently more than 3,000 prisoners on death row in the United States, an average of 71 executions were carried out each year between 1997 and 2005. This figure dropped to an average of 43 in the period between 2006 and last year.16 Although Texas has been the most robust in carrying out executions,17 California has the most populous death row.18 Since 1978, juries in California have imposed the death sentence on more than 900 persons. Yet only 13 of these have been executed, leading to the ironic result that death row inmates in California, nearly 20 per cent of whom are over 60 years of age, may have a greater risk of dying of old age than of being executed by the state. The dysfunction of this system recently led one California federal judge to declare the state’s death penalty unconstitutional.19

A Way Toward Reform

At present, 18 states have abolished the death penalty.20 Five of these did so since 2007.21 With capital punishment statutes on the books in 32 states, and public opinion, by a wide margin, favoring the availability of capital punishment,22 it seems that the machinery of death may continue to operate indefinitely. This raises the question whether some tinkering with this machinery can constrain the use of the death penalty and reduce the risk of the execution of the innocent? Several reforms could help implement this goal.

First, if the death penalty is to be imposed, it should be limited to crimes evidencing profound brutality and depravity, and almost exclusively for crimes involving intentional murder. The Supreme Court has already held that the death penalty cannot apply to a crime committed by someone under the age of 18,23 to a mentally deficient person,24 or for the crime of rape not involving the death of the victim.25 Each of the 32 states with capital punishment, and the federal government, should review their penal codes to make sure that the death penalty, if retained as a possible punishment, applies only to appropriately grave criminal offenses.

Second, if a state retains the death penalty, it must put in place procedures to ensure that defendants on trial for their lives are well represented by defense counsel experienced in capital cases. There are too many recorded examples of defense lawyers who fell asleep during capital trials, were inexperienced in criminal law, or were otherwise inadequate.26 In a speech in 2001, Justice Ruth Bader Ginsburg stated: “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well-represented at trial. People who are well-represented at trial do not get the death penalty.”27 Elemental fairness calls for capital defendants to receive constitutionally effective representation.

Third, the risk of convicting and executing an innocent person must be reduced to an irreducible minimum. This is no mere hypothetical possibility. James Liebman’s study of thousands of capital cases, culled from a 23-year period, revealed a reversible error rate of nearly two-thirds.28 According to the Innocence Project, there have been 317 post-conviction exonerations based on DNA evidence.29 In a 2002 decision, Judge Jed S. Rakoff ruled that the federal death penalty was unconstitutional on due process grounds because of the foreseeable likelihood that innocent defendants could be convicted and executed.30

Two other prominent federal judges have proposed specific trial procedures to reduce the risk of the wrongful convictions by elevating the standard of proof applicable in capital cases from beyond reasonable doubt to a more rigorous formulation. Judge Jon O. Newman has proposed that trial judges in capital trials be required to certify that guilt is certain when the jury returns a verdict of guilt. If the court cannot certify that guilt is certain, the jury may not consider imposing the death penalty.31

Judge Leonard B. Sand has proposed that, once a jury has returned a verdict of guilt beyond a reasonable doubt, but before moving to the penalty phase, the jury should first be required to decide if the prosecution proved the defendant’s guilt beyond all possible doubt. If the jury answers that question affirmatively, the penalty phase proceeds. However, if the jury has been able to exclude reasonable doubt about guilt, but has lingering doubts which prevent the jurors from concluding guilt beyond all doubt, the trial does not proceed to the penalty phase, and the judge sentences the defendant to life imprisonment.32 Both of these error-reduction reforms have much to recommend them.

Because of the unique and irrevocable nature of the death penalty, qualitatively different from all other punishments, special procedural safeguards against error are necessary. In other words, whether or not botched execution procedures will continue to plague the lethal injection regime, other refinements to the machinery of death are readily available to be implemented with the aim of reducing unconstitutional unfairness and the risk of the wrongful conviction and execution of the innocent.


1. Callins v. Collins, 510 U.S. 1141 (Scalia, J., concurring in the denial of certiorari)

2. Washington Times, July 25, 2014, available at (“Witnesses said they could hear [Joseph Ward] gasping for breath the whole time.”)

3. M. Ford, “One Hour and 57 Minutes in Arizona,” The Atlantic, July 24, 2014, available at (describing both the Jan. 9, 2014, execution in Oklahoma of Michael Wilson and the July 23, 2014, execution in Arizona of Joseph Wood).

4. B. Cair, “2014 is Already the Worst Year in History of Lethal Injection: Another Day, Another Botched Execution,” New Republic, July 24, 2014, available at

5. Id.

6. A. Sarat, Gruesome Spectacles (2014).

7. See generally Deborah W. Denno, “Lethal Injection Chaos Post-Baze” Geo. L.J. 1331 (2014). In Baze v. Rees, 553 U.S. 35 (2008), the Supreme Court upheld the constitutionality of one method of execution by lethal injection. However, Professor Denno has written that, since Baze, many states have begun using drugs and lethal injection protocols inconsistent with what the Supreme Court reviewed and approved in 2008.

8. Joseph Rudolph Wood III v. Charles L. Ryan, Order No. 14-16310 at 5-6 (9th Cir. July 21, 2014) (Kozinski, Chief Judge, dissenting from the denial of rehearing en banc).

9. In “A Modest Proposal” Jonathan Swift used satiric hyperbole to suggest that the solution to 18th century famine in Ireland was for impoverished Irish families to sell their children as food for the wealthy. See “A Modest Proposal” by Jonathan Swift, available at

10. See supra, note 8 at 6.

11. Callins v. Collins, supra, note 1 (Blackman, J., dissenting from the denial of certiorari).

12. Furman v. Georgia, 408 U.S. 238 (1972). Although the five justices in the majority in Furman could not agree on the rationale for the decision, its narrow holding has been understood to be that the death penalty, as then applied, is cruel and unusual punishment. Brennan and Marshall, both in the majority, took the position that the death penalty was per se unconstitutional.

13. Id. Stewart also wrote “that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed.”

14. Gregg v. Georgia, 428 U.S. 153 (1976).

15. Death Penalty Information Center, available at

16. Id. M. Berman and R. Barnes, “Everything You Need to Know About Executions in the United States,” Washington Post, Jan. 5, 2014, available at

17. See supra, note 15. Since 1975, 515 persons have been executed in Texas, 111 in Oklahoma, 110 in Virginia and 88 in Florida.

18. Id. Over 700 persons are on death row in California.

19. Ernest Dewayne Jones v. Kevin Chappell, Case No. CV-05-02158-CJC (C.D. Cal. July 16, 2014) (Carney, D.J.).

20. Death Penalty Information Center, available at

21. Id.

22. In 2013, Gallup reported survey results showing that 60 percent of respondents favored the death penalty for a person convicted of murder. Thirty-nine percent were not in favor. Five percent had no opinion. According to Gallup, the two-thirds in favor, one-third opposed, has been steady for at least the past 10 years. See

23. Roper v. Simmons, 543 U.S. 551 (2005).

24. Ashley v. Virginia, 536 U.S. 304 (2002).

25. In Cohen v. Georgia, 433 U.S. 584 (1977), the Supreme Court held that the death penalty did not apply to the rape of an adult victim. In Kennedy v. Louisiana, 544 U.S. 407 (2008), the Supreme Court overturned the death penalty in a case involving the rape of an 8-year-old girl by her stepfather on the ground that the crime neither involved intent to kill nor resulted in the victim’s death. In dissent, Justice Samuel Alito wrote that he understood the majority’s holding to be “that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child.”

26. Compare L. Greenhouse, “Inmate Whose Lawyer Slept Gets New Trial,” New York Times, June 4, 2002, available at, with H. Weinstein, “Judges Reject Appeal in ‘Sleeping Attorney’ Case,” Los Angeles Times, Oct. 28, 2000, available at

27. Associated Press, “Oklahoma Governor Commutes Death Case, Texas Bill Boosts Defense for Poor,” Chicago Tribune, April 11, 2001, at 8.

28. James S. Liebman, et al., A Broken System: Error Rates in Capital Cases, 1973-1995 (Columbia University School of Law 2000).

29. Innocence Project, DNA Exoneree Case Profiles, available at

30. United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y. 2002) rev’d, 313 F.3d 49 (2d Cir. 2002).

31. J. Newman, “Make Judges Certify Guilt in Capital Cases,” Newsday, July 5, 2000, p. A25.

32. L. Sand and D. Rose, “Proof Beyond All Possible Doubt: Is There A Need For A Higher Burden Of Proof When The Sentence May Be Death?” 78 Chi-Kent L. Rev. 1359 (2003).