The Myth of Forever Sleep

In recent years, lethal injection has repeatedly provoked public outcry—sometimes even from people who do not, in principle, oppose the death penalty. International pharmaceutical companies, having cottoned to the use of their products in lethal-injection regimes, have almost unanimously refused to sell to death-penalty states, forcing carceral authorities to seek out alternative, untested regimes, sometimes leading to high-profile cases of botched executions. Some states have even reverted to other, no-less-barbaric forms of execution while they continue to tinker with other lethal injection options.

Why, despite all of these setbacks, do many states continue to rely on lethal injection? This was a key question that legal scholar Corinna Lain set out to answer with her latest book Secrets of the Killing State: The Untold Story of Lethal Injection, a shocking as well as deeply enlightening exposé of lethal injection’s origins, its macabre and unqualified failure as an ostensibly “humane” form of killing—and why death-penalty states nonetheless continue to utilize it. A uniquely comprehensive treatment of the subject, it offers valuable resources for death penalty abolitionists and those seeking to end mass incarceration.

In the following interview, Carol Steiker, one of the foremost legal experts on the death penalty, sat down with Lain to discuss what Lain learned in the course of writing the book and what she perceives at the current status of the legal and cultural fight to end the use of lethal injection for good.

Carol Steiker: Let’s start by talking about how you got into this project. You are a longtime scholar of the U.S. death penalty, but a lot of your other work is different, focusing on history and the law. Secrets of the Killing State, though, is very of the moment. It’s a lot of politics and science. What made you turn to studying lethal injection?

Corinna Lain: I had a research question: Why are states so breathtakingly bad at lethal injection? We know how to put down our beloved pets. We know how physician-assisted suicide works. We put people under anesthesia, cut open their chests, do all sorts of really painful things without causing suffering every single day. So why am I reading about all of these torturous deaths by lethal injection?

That’s what started the project. Before long, the article I thought I was writing became a book. It is very different from my prior work, and that’s in part because I’ve largely lost faith in courts’ ability to protect. I wanted to write a book about that failure that could reach general readers.

Steiker: Let’s bring readers of this interview up to speed: Who came up with lethal injection? When and why?

Lain: The story starts in 1972, when the Supreme Court struck down the death penalty, and then brought it back in 1976. By 1977 here was this renewed death penalty, but the public had not seen an execution in ten years. Legislators were worried about what executions would look like. And a piece of the puzzle that has gone underappreciated in all this is the fact that a federal district court had just found a First Amendment right to televise executions. It wouldn’t last, but nobody knew that at the time. So at some of these legislative hearings, you see representatives saying: Well, we can’t have an electrocution in someone’s living room. In fairness, there were some comments about a humane death, but more than that, there was a striking pattern of interest in a humane-looking death.

Which brings us to Oklahoma in 1977, where legislators were trying to figure out how they would carry out the death penalty. They were looking for something new. They said: What about a death by drugs—a lethal injection? The legislators were asking their personal doctors and the state medical board, but no one wanted any part of it because it breaks the Hippocratic oath to “do no harm.” Then they turned to the state medical examiner, Dr. Jay Chapman, and he rather famously said that he was “an expert in dead bodies but not an expert in getting them that way.” But he was willing to help. He’s the one who made up the three-drug lethal injection protocol that all states would use for the next thirty-five years.

I came across an interview he did with Human Rights Watch where he was asked how he came up with the three drugs. And he admitted, “I didn’t do any research.” When the interviewer asked why he made it a three-drug regime, he said: “You just wanted to make sure the prisoner was dead at the end, so why not just add a third lethal drug?” When asked why he chose potassium chloride specifically, he responded, “Why does it matter why I chose it?” All the other states then blindly copied Oklahoma, and that’s how we got here.

Steiker: And how was his method different from anesthesia, or putting down a pet, or euthanasia?

Lain: Well, for the first thirty-five years it was different in every way. Not a single one of the drugs in the three-drug lethal injection protocol that Chapman invented was the same as the drug that we use for pets or physician-assisted suicide, which is the one-drug pentobarbital protocol. Some states have since switched to that protocol, but even then it’s still not actually the same because drug manufactures have overwhelmingly refused to sell their product for use in lethal injections for moral reasons, so states are forced to use a compounded version of the drug, which adds its own quirks and problems.

On top of that, we don’t have trained professionals administering it because it goes against the Hippocratic oath, which is a huge part of the story. When someone goes in for surgery, you have a trained anesthesiologist who slowly brings them down to the appropriate level of sedation. We don’t have that in the lethal injection context. Instead, what we have is non–medically trained prison guards who are injecting a full bolus dose of the drugs from another room through seven feet of tubing.

Sadly, we had to put down our beloved sixteen-year-old dog this past May, and something the veterinarian said has stuck with me: “suffering takes time.” With animal euthanasia it takes anywhere from thirty to sixty seconds and they’re gone. The average time now of the one-drug protocol for lethal injection is eighteen minutes.

Steiker: And are we to understand that that is a painful thing for the person experiencing it?

Lain: Yes, absolutely. I mean, we can’t ask them how it went, obviously, but we know as a matter of scientific fact that barbiturates like pentobarbital are very alkaline, and sedatives like midazolam are very acidic. These people are getting a massive overdose of the drugs and that difference in the pH is chemically burning the little capillaries in the lungs, causing acute pulmonary edema.

Now, the government’s responses to this has morphed over time. At first, states said: Yes, the autopsies are showing acute pulmonary edema, but you don’t have to worry about it because they’re already dead. Then the scientists basically laughed them out of the room. That claim is anatomically impossible because acute pulmonary edema is little air bubbles mixed with fluid. That requires air going in and out of the lungs, which is not possible with a dead person.

Then states changed their argument to: Even if the edema was happening, it wasn’t caused by this particular protocol. Other protocols show it too. Again, the scientists intervened, saying: Yeah, all those protocols are causing it. Then states said: Well, even if it is the lethal injection drugs that’s causing it, not to worry, they can’t feel it. But the top scientists in the world have said that’s absolutely not true, because the damage to the capillaries is happening immediately. When a drug is injected in the vein, it goes first to the heart, then to the lungs. In seconds, that massive overdose is hitting the lungs. That’s why we’re seeing the acute pulmonary edema, because the drugs are in the lungs before the body can buffer the pH. Now the latest state response is: OK, well, it might be incredibly painful, but it’s only for three, four, five minutes, and that’s not enough to violate the Constitution. And to that I say, as I do in the book, five minutes is a very long time when you are being waterboarded to death.

Steiker: You’ve explained to us how the current regime of lethal injection regularly produces torturous deaths. So why aren’t courts finding a violation of the Eighth Amendment proscription of cruel and unusual punishment?

Lain: The Supreme Court has pretty much eviscerated Eighth Amendment protection. It simply doesn’t exist. And if there’s any question about that, we need only track the outcomes of the three cases from the past two decades where lethal injection was challenged by people on death row on the basis of the Eighth Amendment: Baze v. Rees, Glossip v. Gross, and Bucklew v. Precythe.

With Baze in 2008, incarcerated people in Kentucky argued that the state’s three-drug lethal injection protocol caused an unnecessary risk of serious pain and amounted to cruel and unusual punishment. The Supreme Court said: Well, you’ve got to prove a substantial risk of serious pain, not an unnecessary risk. You didn’t do that, so you lose.

In 2015, we get Glossip v. Gross. In that case, incarcerated people in Oklahoma challenged the state’s use of midazolam as the first drug in the three-drug protocol. They clearly showed a substantial risk of serious pain. In fact, a guy in Oklahoma woke up in the middle of his own execution and tried to get off the gurney when the state used that drug. It was a disaster, and lasted over forty-five minutes. So in Glossip, the Supreme Court says, Well, by “substantial risk,” we meant “sure or very likely.” Now, any third grader can tell you that those are not the same thing. On top of that, the Court added a new requirement. They tried to say it wasn’t new, but it totally was. They said: Oh and also, when you challenge an execution method, you have to provide an alternative way for the state to kill you. I know we’re just telling you this now, but you didn’t do that, so again, you lose.

And that brings us to Bucklew v. Precythe in 2019. There, Russell Bucklew had this rare medical condition, and, again, made a super strong showing that he was going to get tortured to death. So the Supreme Court again changed standard, saying: Actually, showing torturous pain isn’t enough. You have to show that the state did something to make it that way. You have to show that it somehow “superadded” pain. Which, good luck with that.

The other remarkable thing in Bucklew is that Bucklew’s team had proposed an alternative: nitrogen gas. He used the same fourteen-page report as was used by the legislature of Oklahoma when it adopted that method—which I must say was double-spaced, unpublished, and had so many typos in it that it even spelled one of the author’s names wrong. But it was good enough for Oklahoma so one would think it would meet the requirement of proposing an alternative execution method too. But it didn’t. The Supreme Court said that for the alternative to be valid, the incarcerated person had to provide all of these crazy details that were not in that report, like the percentage of nitrogen that would be in the gas, and the safety measures for the people who are trying to kill you.

So what we have is a pretty clear pattern: lethal injection is so bad that these incarcerated people are actually able to meet these super high standards. And what is the Court’s response? Well, we’ll just keep raising the standard. At this point, I just don’t think these standards are meetable, and I think that’s the point.

The other thing worth noting is the allocation of the burden of proof. States have no burden whatsoever to show that their execution methods are minimally humane. The burden falls entirely on the incarcerated person to show that they are inhumane. So here’s what that looks like. The state makes up a protocol out of whole cloth and says it’s humane. The incarcerated person says, No, it’s not, and the Supreme Court says to the incarcerated person: prove it. But they can’t prove it because the science doesn’t exist. The state made it up. So they lose, destined to become the evidence of a torturous death that they needed to make the claim.

Steiker: We now see some states starting to get nervous about lethal injections. Some have changed the three drugs to one drug, for example, often in response to international pharmaceutical companies not wanting to provide the drugs in the protocol. Hurdles such as these have led some states to turn to older, maybe even worse forms of execution, like reviving the electric chair or the firing squad—or to come up with new and completely untried methods of execution, like nitrogen gas. How should we think about these increasingly common responses by state legislatures and carceral authorities?

Lain: That’s a great question. The thing is, it’s people on death row who are choosing these alternatives. In Tennessee, five of the last eight people who were executed before 2025 chose death by the electric chair. Death by the electric chair is a gruesome, torturous death, but when asked why they chose it, the incarcerated people said: Both deaths are going to be torturous. Our best move is to make it quick. That is exactly what’s happening with the firing squad as well. Look, all these execution methods are going to cause excruciating pain. They’re all inhumane. For those facing execution, it’s a question of how prolonged the excruciating pain will be.

When I think about alternatives, here’s another thing I think about. I began my research asking why states couldn’t get legal injection “right.” Why are they so bad at this? Later, my research question morphed into the question: Why are states still sticking with lethal injection? Why haven’t more states moved to alternatives? They can’t get the drugs. They can’t get qualified medical personnel. They can’t get access to people’s veins, these people have notoriously bad veins. It costs a gazillion dollars. They’re violating state and federal laws. And it’s not even humane. They’re pushing this huge rock uphill—why? What is it about lethal injection that makes states stick to it like glue?

What I’ve come to conclude is that there’s one thing, only one, that lethal injection does well: it hides the violence of state killing. We don’t have to see the sight of blood like with the firing squad. We don’t have to smell the sickly smell of burning flesh like we do with the electric chair. We don’t have to see the gasping and retching and choking like we do with the gas chamber. Instead, we get to tell ourselves that these people are just falling into a forever sleep, and that makes it easy to not think about what state killing is at all.

I think this one thing is doing enormous work in maintaining the death penalty today. When we talk about the death penalty, we talk about the idea of it: Are you for it or against it? Support for the death penalty is by and large support in the abstract. Lethal injection is doing tremendous work in keeping the death penalty abstract. In this way, there’s a macabre upside to states reverting to more visibly brutal execution measures, as we’re seeing these almost cinematically grotesque deaths spur conversations about what the state is actually doing.

It makes me think of your work, Carol, on the faux legitimacy that the death penalty enjoys. You’ve written about how people can just tell themselves: Well, there’s all these appeals, it’s a long and laborious process, so sloppiness and carelessness in the state’s most powerful moment isn’t something I have to worry about. I think there’s a similar thing that is happening with lethal injection. I hope this book will help disabuse people of this notion.

_{Image: Arturo Castaneyra / Unsplash}

Contributors

Corinna Barrett Lain Corinna Barrett Lain is the S. D. Roberts & Sandra Moore Professor of Law at the University of Richmond School of Law. She is author of Secrets of the Killing State: The Untold Story of Lethal Injection.

Carol Steiker Carol Steiker is the Henry J. Friendly Professor of Law at Harvard Law School, where she serves as the Dean’s Special Advisor for Public Service.

Topics

• Institutions & Practices

Tags

• abolition
• death penalty
• incarceration and the court
• supreme court