Austin Sarat, the William Nelson Cromwell professor of Jurisprudence and Political Science at Amherst College, is one of the preeminent capital punishment scholars in the nation. His most recent book, Gruesome Spectacles: Botched Executions and America’s Death Penalty, examines botched executions throughout American history. We spoke with him to discuss the recent botched execution of Joseph Wood in Arizona, the history capital punishment in America, and the future of the abolition movement.
After researching botched executions throughout history, what can you tell us about the recent botched execution of Joseph Wood? Was it exceptional or more commonplace than we might expect?
If you look over the course of the 20th century and into the early 21st century, 3% of all American executions have been botched. That includes executions by hanging, firing squad, lethal gas, electrocution and lethal injection. The mere fact of a botched execution is not a surprise; botched executions are part of the American story of capital punishment. In the period from 1977 and early 1980s forward, where lethal injection has become the predominant mode of execution, 7% of all lethal injections have been botched. So, one shouldn’t be surprised when executions go wrong. Now, how they go wrong is quite varied. The botched execution, as I define it, is an execution that departs from legal protocol or from customary or standard operating procedure. The Wood execution and the other recent botched executions need to be seen as a part of this broader picture.
What about in terms of time? It took about an hour and 57 minutes.
It took a long time for him to die. There have been other executions, even in recent time, that went on for a very long period of time too. And there was the failed execution of Romell Broom in Ohio. So, I don’t think what makes it exceptional is just the length of time—I’ll explain what I mean by that. Throughout the 20th century, botched executions have not played a large role in the national conversation about whether we should retain the death penalty. They have played a role in moving us from one technology to another. If you look at what was happening in the late 19th century with hanging—that was part of a story that fueled the movement towards electricity as the method of execution. And if you look at the early 1920s, part of the story about why we used lethal gas had to do with the gruesome failures of hanging. And if we fast forward to the late 1970s and early 1980s, the failures and fact that people being executed caught on fire was part of the reason why lethal injection was adopted. But what makes the recent spate of botched executions different, is the context in which they’re happening now. In the past, botched execution would be written off as mere accidents, having nothing to do with the rest of the death penalty system. Today, botched executions fit a rather coherent narrative of systemic failure in the death penalty system as a whole. They fit a story. They fit the story of the risk of convicting and executing the innocent. They fit a story of the risk of arbitrariness and racial discrimination in the penalty phase. They fit a story of the excruciating and systemic delays, which have plagued places like California. So, I don’t want to focus on the length of time it took him to die, and say that’s what made it exceptional. The exceptional quality of these executions is that they’re exceptionally important now in the national conversation about whether we should have the death penalty at all.
Do you worry that the national dialogue surrounding these botched executions might be pushing us towards a different execution method instead of pushing us towards full abolition of capital punishment? Or is the kind of media attention we’re seeing really that distinct enough that it could be considered a really different dialogue than what we’ve had in the past?
I think it’s different in a lot of ways. There isn’t a new technology over the horizon to replace lethal injection. And the idea of going back to electrocution or the firing squad is a sign of the difficulties that proponents of the death penalty find themselves in today. I think that proponents of the death penalty are, in a broad way, on the defensive because the conversation has changed. In the past, the conversation about the death penalty was often about the people we were seeking to execute and their crimes, the conversation today is as much about those who punish, about the society that seeks to punish, and about who we want to be. Do we want to be a society that risks executing the innocent? Do we want to be a society that risks executing people because of the race of their victim? Do we want to be a society that keeps people on death row endlessly? Do we want to be a society in which 3%-7% is an acceptable error rate?
Predictions are just predictions; they’re not worth a whole lot. So, I’m not in a position where I can say I can predict where and how the death penalty will end in the United States, but the trends are pretty clear. We seem to be on the road toward abolition. And that process is not going to be quick, and it's not going to be smooth. It will be a little bit of a two steps forward one step backward process. But as I was saying, botched executions now fit a story, and that’s the story of a broken machine. I think the conversation about capital punishment in the United States is about trying to come to terms with this broken machine.
How would you describe this broken machine as a professor who studies law? Are there real constitutional violations that we’re talking about here or is this more of a moral shift among the public?
I would say it’s neither legal nor moral in the first instance. What’s shifting, I would say, is the politics of the death penalty. You don’t have to have high moral commitments to say, favor the death penalty but not want to risk executing the innocent, or favor the death penalty but not want to risk executing people on the basis on the race of their victim, or favor the death penalty but not want to live in a society in which the way we put people to death seems to be unreliable and gruesome. I would say the political landscape has changed in that way. In fact, part of what’s moved the conversation is that we’ve moved away from a high moralism about these questions and towards a more realistic, practical, and political look at the way the death penalty system works. I, of course, think there are substantial legal issues that are associated with the death penalty in the United States. The United States Supreme Court got it wrong in McCleskey vs. Kemp in my view. The United States Supreme Court got it wrong in Baze vs. Reese in my view. The litigation going on all around the country today governing drug protocols have substantial legal issues. But what’s moving the conversation is that we’re talking about the death penalty that we have, not the death penalty that we hope we have. We’re now focused on the practical realities of what happens when we try to live with a system in which we put people to death.
As the abolition movement progresses, do you think other framings of this issue—such as conviction error, the possibility of innocence, and mental illness—are going to start to take prominence. Or are botched execution a unique event that draws a lot of national media attention to this issue?
In a way, executions in the early 20th century are not supposed to make headlines. They’re supposed to be back page stories. So whatever brings executions to the front pages, that’s a kind of breach of the routinization of capital punishment in the United States. These botched executions help to break that routinization. But I believe it’s because the narrative all fits together. It’s not just about innocence, it’s not just about race, it’s not just about mental disability, it’s not just about the delays, it’s not just about botched executions. I studied newspaper reports of botched executions over the course of the 20th century, and generally botched executions were treated as isolated events and as misfortunes rather than injustices. They’d say “oh the executioner was drunk” or “the electrode wasn’t screwed on tight enough.” So there’s been a tendency to say it’s just an accident. But my work shows that the frequency of the accident is 3% over the course of the 20th century and 7% for lethal injections. If you look at it state by state over the period from 1980 to 2010, I estimate that in a state like Ohio or North Carolina, 18% of their executions were botched in some way. It’s the coherence of the story, rather than the individual elements that I think changed the climate in the United States.
This interview has been edited for length and clarity. If you are interested in ordering Gruesome Spectacles and helping out the National Coalition to Abolish the Death Penalty, you can purchase the book through Amazon Smile and a portion of the proceeds will go towards NCADP.