TBA Law Blog

Posted by: David Raybin on Nov 1, 2014

Journal Issue Date: Nov 2014

Journal Name: November 2014 - Vol. 50, No. 11

By Austin Sarat | Stanford Law Books | $24 | 288 pages | 2014

In 2007 Daryl Holton elected to die in Tennessee’s electric chair rather than be executed by lethal injection for his murder of four children. Mr. Holton asked me to represent him in his final hours.

As I witnessed the lengthy preparation for the electrocution process I was armed with the telephone numbers of judges and the governor and the only direct outside line in the entire penitentiary. My great fear, of course, was that this electrocution would somehow go awry. I might need to use that telephone to bring Holton’s execution to a halt.

Mine was not an unrealistic fear. After drafting Tennessee’s death penalty statute when I was a prosecutor and handling a multitude of murder cases, I was very familiar with the problems of botched executions in America. My perceptions were, however, largely anecdotal. Now, Professor Austin Sarat of Amherst College has written an excellent book documenting in detail the botched executions in the United States since 1890.

A “botched” execution is defined as one in which the condemned person suffered prolonged and severe anguish or there was gross incompetence of the executioner. Examples include instances where the inmate caught fire while being electrocuted, was strangled during hanging instead of having his neck broken, was administered the wrong dosage of specific drugs for lethal injections, or experienced a malfunction of the equipment in the gas chamber.

Professor Sarat reviewed some 9,000 capital sentences carried out in the United States from 1890 through 2010 and determined that 276 were botched according to this definition. Of this number, 8 occurred in Tennessee, including Mary the circus elephant who was executed for killing one of her trainers in 1916. The animal was hung by the neck using a construction crane and a heavy chain which broke on the first attempt, injuring the elephant’s hips. The second attempt was successful, and Mary strangled to death. Such malfunctions occurred in human executions, making inclusion of the elephant entirely apt.

Within each chapter Professor Sarat addresses three or four specific instances of a botched execution, discussing in detail exactly how the malfunction occurred, its effect on the condemned and in many instances, its effect on those who observed the botched execution. Some of these accounts are startling, such as the decapitation of Eva Dugan whose hanging went horribly wrong in light of a problem with the length of the rope: “When Mrs. Dugan plunged through the trap door and hit the end of the rope with a bounding jolt, her head snapped off and rolled into a corner.”

Public revulsion to these spectacles caused a move to the electric chair where death was said to be “instantaneous.” Sarat catalogs the problems with that means of execution and also recounts the familiar tale that the electric chair was a publicity stunt by Thomas Edison to illustrate the dangers of a competing type of electricity. Problems with the electric chair led to the gas chamber and then to lethal injection.

The text recounts many of the botched executions but does not spare us the details of the crimes each murderer committed so that there is at least the appearance of balance. Throughout, Professor Sarat stays true to his topic and does not stray into anti-death penalty arguments regarding the cost of executions or that an innocent person may have erroneously been executed.

The book is not a mere recounting of botched executions but contains what are functionally stand-alone essays as to the legitimacy and future of capital punishment in the United States. Indeed, I re-read the first chapter after finishing the book, which was far more meaningful the second time around. Non-lawyers may find that first chapter a “hard read” since it does delve into the case law perhaps a bit too much. However, once past that analysis the history of executions in England and then in the United States is presented in well-written prose.

The statistics demonstrate that out of around 9,000 executions, about 3 percent were bungled in some way. The highest rate of error (7 percent) occurred with lethal injection. The recent botched executions in 2014 suggest that Professor Sarat may be correct that lethal injection is perhaps the most problematic currently used form of execution.

There have been no malfunctions in the 34 executions by firing squad as reflected in Appendix A of the book. While he cites the statistic, Sarat does not address, as did a federal judge in the Ninth Circuit Court of Appeals, that execution by firing squad suffers from none of the flaws of lethal injection. Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissenting).

I highly recommend Sarat’s important work as our country struggles with being one of the few remaining democracies that kill their citizens as a punishment for murder. Certainly it is appropriate to debate the means of execution just as we debate the necessity for having the death penalty as the ultimate sanction.

DAVID RAYBIN is a partner at Hollins, Raybin & Weissman. He is a 1973 Order of the Coif graduate of the University of Tennessee College of Law. He was twice awarded the Justice Joe Henry Award for outstanding legal writing by the Tennessee Bar Association and received the Jack Norman Award from the Nashville Bar Association for his criminal defense work.  He is also the author of the three-volume treatise Tennessee Criminal Practice and Procedure.