Telling Secrets: Ending Torture

Georgia Criminal Law Review Georgia Criminal Law Review

Telling Secrets: Ending Torture Telling Secrets: Ending Torture

Telling Secrets: Ending Torture Telling Secrets: Ending Torture

William W. Berry III *

SECRETS OF THE KILLING STATE: THE UNTOLD STORY OF LETHAL INJECTION. By Corinna Barrett Lain. New York: NYU PRESS, 2025. Pp. 384. $29.95.

INTRODUCTION .................................................................... 1 I. THE SECRETS OF LETHAL INJECTION ............................. 3 A. THE SECRETS ........................................................ 4 1. THE SECRET OF FAUX SCIENCE ..................... 5 2. THE SECRET OF TORTUOUS DRUGS ............... 6 3. THE SECRET OF ERROR-PRONE PROCE-

DURE .............................................................. 9 4. THE SECRET OF INEPT EXECUTIONERS .........12 5. THE SECRET OF DRUG SUPPLIERS ................13 6. THE SECRET OF THE MEDICAL PROFES-

SION’S OPPOSITION .......................................14

GATIONS ........................................................15 B. HOW STATES KEEP SECRETS .................................17 II. HOW TELLING CAN END SECRETS ................................18 A. PUBLIC RESPONSE ................................................18 B. LEGISLATIVE RESPONSE .......................................21 C. JUDICIAL RESPONSE .............................................22 D. EXECUTIVE BRANCH RESPONSE ............................24 III. LETHAL INJECTION AND ABOLITION ............................26 CONCLUSION ......................................................................30

One might think that the methods of execution used in the United States have become more humane over time.1 States replaced the brutality of hanging with electrocution2 and then electrocution with lethal injection.3 And lethal injection has accounted for approximately ninety percent of executions4 since the Court reinstated the death penalty in Gregg v. Georgia.5

By all appearances, lethal injection seems like a medical procedure in which the state facilitates the condemned inmate’s peaceful slide into a permanent sleep. The reality could not be further from this appearance. What we see is not what we get because lethal injection prevents even those few who watch from seeing what really happens to the inmate.

A compelling new monograph, Secrets of the Killing State: The Untold Story of Lethal Injection by Corinna

Barrett Lain, uncovers the truth about lethal injection.6 Professor Lain’s careful, thoroughly researched narrative demonstrates that lethal injection is a secretive form of state-sanctioned torture. States administer these brutal executions in the most irresponsible way possible with individuals who lack the training or expertise to perform necessary medical procedures, much less kill humanely.

If there is anything lacking in this wide-ranging exposé of the secrets of lethal injection, it is that Professor Lain does not explore the implications of her findings. She shows us what the problems are, but she does not make a case for how to respond.

This book review essay picks up where the book leaves off, exploring the implications of the book’s findings, both for lethal injection and the death penalty more broadly.7 Specifically, it argues that telling these secrets—far and wide so that they become a part of public consciousness— is the way, maybe the only way, to end the torture of lethal injections.

Part I begins by exploring the lethal injection secrets that Professor Lain’s research has uncovered. These range from faux science and torturous drugs to error-prone procedures and inept executioners. In Part II, the essay then does picks up where Prof. Lain’s book leaves off in considering the implications of the secrets uncovered and in making the case for telling them. Part III then relates the lethal

injection conversation to the question of abolition, showing that the problematic nature of lethal injection specifically, and execution methods more generally, leads directly to the conclusion that states should abolish the death penalty. In short, once one reveals its secrets, lethal injection proves to be a method beyond repair and opens the door to a similar conclusion about the death penalty itself.

Professor Lain begins her monograph with the story of Oklahoma’s botched execution of Clayton Lockett.8 Lockett suffered one of the most visibly brutal executions in recent history. His execution was one of the longest, an ordeal that lasted forty-three minutes after the injection of the drugs and almost two hours after the initial attempt to set an IV.9 The initial introduction of midazolam10 did not sedate Mr. Lockett, and the doctor and prison officials wrongly assumed that Lockett was unconscious.11 As the executioners pushed the second drug, Lockett began first to moan, then to writhe under his restraints.12 Onlookers recognized that the drugs were not working.13 Lockett then jerked forward, with his shoulders moving off of the gurney, his head moving forward and grimacing.14 Prison officials lowered the blinds to hide what was happening.15

A bulge almost the size of a tennis ball emerged under the skin along with liquid and blood at the IV insertion site.16 The Warden did not know what to do and considered

whether they should try to save Lockett.17 They decided to try to finish the execution.18 The second and third drugs started to work, but the executioners decided to get more of them, and injected the third drug again.19 There was a failed attempt to start a new line on the femoral vein which hit the artery instead, but ultimately Lockett was succumbing.20 By this time, the Governor had called to stop the execution, but Lockett died minutes later.21

This anecdote could be a symbol of what could happen when an execution goes wrong. But Professor Lain’s book goes a step further by showing that this is what does happen on a regular basis. The errors in Lockett’s execution are ubiquitous in lethal injections, not just an isolated incident in one Oklahoma execution.

Indeed, the secrets that pervade lethal injections are troubling at best, and in many cases, horrifying. Revealing these secrets helps one see the reality of lethal injection— as a method of torture, contrary to the false narrative the public embraces and government officials tell.

It is worth noting that states have gone to great lengths to hide executions from the public.22 Historically, hangings were a public event in which citizens could watch the state enact retribution on behalf of the community.23 But modern lethal injection is the opposite.24 Conducted in a private viewing, with very few witnesses, these lethal injection

killings are not professional, medical exercises of humane extinction. The secrets Lain reveals show that they are the opposite—brutal, torturous killings performed in a most incompetent way, and in secret.

1. The Secret of Faux Science

The first secret of lethal injection is that this execution method has no basis in science.25 Oklahoma medical examiner Jay Chapman, who had no expertise in drugs or executions,26 made up the three-drug protocol in the late 1970s, and most states simply copied his method.27 Chapman explained, “I didn’t do any research … I wanted to have at least two drugs in doses that would each kill the prisoner, to make sure if one drug didn’t kill him, the other would.”28 Amazingly, Oklahoma simply adopted Chapman’s method without any scientific scrutiny—no hearings, no expert testimony, no review of medical literature.29 The science for the drugs did exist at the time, as all three drugs had received FDA warning labels describing what each drug did, consistent with studies of each.30 But what had not been studied or considered were the “off-label” uses of the drugs proposed by Chapman’s protocol.31 The goal was to kill, not to save, and the protocol prescribed volumes of the drugs never before used, much less

studied.32 The decision to deliver the entire quantity of each drug at once—bolus dosing—was also unusual and gave rise to the possibility of “profound physiological derangements.”33

Later studies in 2005 and 2007 raised serious concerns about the three-drug protocol which rested on the “scientifically unsupportable” claims states made about lethal injection.34 In particular, odd variances of sodium thiopental concentration in the blood of executed individuals led researchers to state that “[w]e certainly cannot conclude that these inmates were unconscious and insensate” at the time of the administration of the second and third drugs.35

Perhaps the most shocking part of this secret—that lethal injection protocols have no basis in science—is that most states used a three-drug protocol for over thirty years without understanding how it actually worked.36 As explored with the next secret, the bolus dosing of the threedrug protocol meant that, all too often, non-anesthetized prisoners were essentially slowly waterboarded until they died.37

2. The Secret of Torturous Drugs

The second secret of lethal injection is that the drugs themselves are torturous, tools by which the state inflicts unnecessary suffering while killing inmates.38 The second

drug in the three-drug protocol, pancuronium bromide, operates as a paralytic on the human body.39 If inmates are conscious when injected with this drug, they experience death by slow suffocation, much like the experience of “having one’s nose and mouth blocked off.”40 Even worse, the effect of the paralytic “couples the inability to breathe with the inability to struggle.”41

Externally, the drug operates to keep this torture a secret. The paralytic effect of pancuronium bromide projects an image of peaceful slumber.42 A muscle relaxant, the drug removes muscle tension and then freezes the body, so observers remain oblivious to the internal suffering occurring.43

It is possible that the anesthetic can work and limit the pain felt from the pancuronium bromide, but no one can tell because it renders the inmate paralyzed.44 Even worse,

this drug is not even necessary to kill the inmate because the third drug does that.45 The pancuronium bromide slowly suffocates the inmate which is entirely unnecessary as a predecessor to death by cardiac arrest from potassium chloride. And pancuronium bromide does not hasten death—this waterboarding-like suffocation can take ten minutes or longer.46

The third drug in the lethal injection protocol of most states is potassium chloride, a naturally occurring salt in the human body that also melts ice as road salt.47 In lethal injections, potassium chloride triggers cardiac arrest, an extremely painful event.48 Perhaps worse, the drug operates as a highly caustic agent, chemically burning the veins on the way to the heart.49 Doctors describe the feeling as like “taking a blow torch to your arm”50 and “injecting liquid fire.”51

So, the first drug is the only way to ensure torture does not occur. The confusion that occurs, as Professor Lain explains, relates to the difference between being anesthetized, where one feels nothing, and being unconscious, where one feels everything.52 The unconscious inmate will

awaken with the introduction of the second and third drugs, but will appear asleep thanks to the paralytic, resulting in a sort of secret torture.53

The original first drug was sodium thiopental, considered the gold standard, even though states often used it in ways that did not work.54 More recently, states have used midazolam, which is extremely problematic.55 It does not render patients insensate because it does not have the chemical capacity to do so.56 It hits its ceiling effect (meaning additional dosage has no effect) before patients reach anesthesia.57

Some states, namely Texas, have used a one-drug protocol with pentobarbital.58 Recent autopsies have shown the consequence of this method—acute pulmonary edema.59 This means that the cause of death is essentially an internal drowning from within, with lungs inflating with liquid until the inmate can no longer breathe.60 In cases where the inmate can feel it, the sensation is akin to the torture technique of waterboarding.61

2. The Secret of Error-Prone Procedure

The errors inherent in lethal injection are another secret of this method. Lethal injection has the highest botch

rate of any execution method in American history.62 The procedure required gives rise to a number of possible problems. First, some drugs require mixing because they come in a powder.63 While one might think this would be as easy as mixing Kool-Aid, the drug requires careful dilution, without which it becomes largely ineffective.64 There have been situations where the drug instructions did not match the instructions of the lethal injection protocol, resulting in improvisation in preparing the drug.65

The paralytic drug also can have storage requirements that prison guards do not follow and can be susceptible to incorrect dosage calculations.66 There can also be a problem with incorrectly sized syringes.67 To overdose inmates, especially obese ones, large syringes are necessary to inject the large volume of drugs required.68 The level of precision needed coupled with the inexperience and lack of knowledge of prison personnel has often been a recipe for disaster.69

Accessing a vein for IV access can be its own nightmare, particularly given the lack of training of executioners in inserting IVs.70 Most executions use a catheter, designed to eliminate the need to establish a new IV for each drug.71 But catheter IVs are notoriously difficult to insert in the lethal injection setting, particularly because many inmates are former IV drug users.72 Indeed, most states hide the IV

insertion process from public view.73

The injection of the drugs also can lead to mishaps.74 Mistakes have included administering the wrong drug, failing to use saline flush between drugs resulting in coagulation, and fastening the prisoner’s straps too tight, blocking the flow of drugs.75 The use of bolus dosing (injecting the entire drug amount at once) also is challenging because the pressure can cause a “blowout”—a collapse of the vein.76

The tubing itself is a challenge, with lethal injection requiring over five feet of tubing in order to position the executioner in the adjacent room.77 Leaks, kinks, clogs, and problems with tube extension connectors all can contribute to a botched execution.78 There is also the problem with the poor conditions of the rooms used for lethal injections, particularly the lack of good lighting, which also increases the chances of a botched execution.79

Monitoring is also a problem, to the extent true monitoring is even possible with a paralytic.80 Executioners are usually monitoring from the adjacent room from which they are injecting the drugs.81 Courts in Missouri, Tennessee, and California have all found that the conditions of the adjacent room were inadequate to allow for proper monitoring of executions.82

The consciousness checks that most states conduct to

see if the patient is awake before injecting the second and third drugs are also insufficient.83 This is because patients can be unconscious but not anesthetized.84 Unlike anesthesiologists, prison officials often do not even know what to look for to see if the first drug has worked.85

3. The Secret of Inept Executioners

In addition to the many secret errors of the lethal injection protocols, the lack of qualifications of the people performing the executions is also a secret. In the first instance, many states keep the identity of the executioners secret.86 The ones that are known, however, give great cause for concern. One executioner who worked for both Missouri and Arizona had a history of making errors in the mixing of drugs based on confusion he had with numbers.87 Executioners in other states had criminal records and lost accreditations because of malpractice.88 And the individuals carrying out executions are often some of the lowest paid employees in government.89

For those executioners not known, state lethal injection protocols are consistent in not requiring any credentials for potential executioners, with the exception of the IV team.90 But even that team often has low qualifications—medical technicians are sufficient, even those with only a little experience.91 Evidence suggests that the state’s executioners do not exceed this floor.92

States ask prison guards to mix and administer drugs, which typically requires a qualified pharmacist’s, doctor’s,

or nurse’s expertise.93 In many cases, the guards have not received the training or experience necessary to perform lethal injections without problems, especially in states that rarely perform executions.94 Executioners typically do not have prior training, instead teaching themselves as they conduct the executions.95

4. The Secret of Drug Suppliers

States often cannot obtain the drugs they need to perform lethal injections.96 This shortage is not the product of abolitionist interference, but instead a reality of the pharmaceutical market.97

Hospira decided to cease producing sodium thiopental as part of an agreement to relocate its production plant from North Carolina to Italy.98 Great Britain banned another company, Dream Pharma, from exporting sodium thiopental to the United States.99 The EU subsequently barred the export of all lethal injection drugs to the U.S.100 Big Pharma companies like Pfizer have subsequently blocked attempts by states to use their drugs in lethal injections.101 These companies market the saving of lives and do not want to be associated with executions.102

States have still tried to import these drugs and have

faced issues with both the DEA and FDA.103 The idea that states have to smuggle drugs in order to conduct lethal injections certainly suggests something about the method itself.104

Compounding pharmacies have become the answer for some states, largely because they operate outside of the jurisdiction of the FDA.105 This introduces another set of problems, as the failure rate of compounding lethal injection drugs is between twenty and thirty-five percent, with even higher risks for the sterility required for lethal injection.106 This means the drugs may risk bacterial, fungal, and endotoxin contamination, as well as other flaws that affect the strength, quality, and stability of the drugs.107 Professor Lain goes into additional detail about all of the other problems that states have in obtaining drugs,108 but needless to say, getting the drugs remains a challenge, and the drugs obtained may themselves be contaminated or otherwise flawed.109

5. The Secret of the Medical Profession’s Opposition

In the same way that pharmaceutical companies are unfriendly to lethal injections, so is the medical profession.110 Following the Hippocratic Oath, doctors generally refuse to participate in lethal injections, and almost never play an active role.111 As Professor Lain points out, lethal injection “repurposes medicine” and thus implicates the

medical profession, even if doctors refuse to participate.112 Lethal injection corrupts the medical profession by undermining the foundation of trust by using medicines to kill.113 Lethal injection also exploits the medical profession to the extent that it uses purported “medical techniques” to legitimatize its methods.114

The secret here is that lethal injection is not really “medical”—it does not provide the care and competence that one expects to find in a medical setting.115 And it similarly does not enjoy the approval of the medical profession.116 The hidden nature of lethal injection, making torturous injections appear painless, allows state violence to look medical.117

The medical profession has long opposed lethal injection.118 It is not just the medical associations but also the anesthesiologists that have voiced opposition.119 But this opposition has also remained a secret, or at least something that is not commonly part of the discussion.120

6. The Secret of Legislative Delegation

A final lethal injection secret that Professor Lain unearths relates to the complete delegation of lethal injections to prisons. The expertise of prison administrators consists of managing prisons, not killing inmates.121 And yet, the hidden nature of the process and the lack of external review for the first fifteen years of lethal injections has meant that the ignorance and incompetence of administrators has gone largely unobserved.122 As scholar Deborah

Denno has explained, “The more information that states reveal (about their lethal injection procedures) … the more we realize that they don’t know what they are doing.”123

This delegation of lethal injection by legislatures to prisons is not only a secret, but it also enables secrecy.124 Vague lethal injection statutes provide prisons flexibility when what they need is guidance. As Justice Stevens explained in Baze v. Rees, “the drugs were selected by unelected Department of Corrections officials with no specialized medical knowledge and without the benefit of expert assistance or guidance.”125

This delegation secret is most troubling because of the complete lack of knowledge corrections department officials have about their own lethal injection protocols.126 And the protocols themselves, which serve as the instruction manuals for executioners, remain so flawed and likely to give rise to problems because the people writing them know very little about the medical science involved in executing someone.127 These protocols skip steps, hide discretion, and make egregious errors.128 Professor Lain likewise chronicles examples of the ineptitude and carelessness in

implementation, giving the examples of California, Tennessee, and Alabama.129

Further, courts have repeatedly allowed states to hide the details of their lethal injection protocols to prevent challenges.130 Perhaps the reality of torture does not matter to state governments if the state achieves its objective of killing. Even so, many go to great lengths to hide this repeated incompetence.

So, the secrets of lethal injection are numerous and significant. Lethal injection relies on faux science. It uses torturous drugs. It involves error-prone procedures administered by inept executioners. States go to extraordinary and sometimes illegal lengths to obtain lethal injection drugs, which may not even be suitable for use. The medical profession remains strongly opposed to lethal injections for medical and ethical reasons. And states delegate the entire process to prisons, which often work to hide their flawed and torturous protocols.

Given the power of telling these secrets, it is important to recognize why the truth about lethal injection remains unknown. Professor Lain describes the efforts of states to keep lethal injection secret as the “state secrecy twostep.”131 States first do everything they can to cover up botched executions and other errors.132 Then, states work to ensure that others cannot make future discoveries by reducing transparency.133

The efforts at secrecy are not happenstance. States have adopted secrecy statutes, formal efforts, to hide what happens during a lethal injection.134 An outgrowth of the clandestine nature by which states obtain the drugs

themselves, these laws hide the drugs to be used from the inmate.135 Not to mention the way the paralytic itself also hides the results of the protocol itself.

States argue that secrecy is necessary to fight against abolitionists and keep the death penalty in use. But this ignores the duty states have to their citizens to share how they are exercising their power to kill prisoners. Secrecy precludes accountability. And telling these secrets could go a long way to ending the torture of lethal injection.

Professor Lain’s monograph has an evangelistic purpose of sorts.136 She wants to tell as many people as possible about the reality of lethal injection, giving it a transparency that changes the understanding of the conduct the states are actually engaging in—one that is connected to reality, not myth.

But her book never explores the implications of her work. It tells us the secrets, but it never explores the consequences of telling them.137 This Essay argues that they are tools by which one can effectuate change.

The exposing of these secrets sitting in plain sight (at least that of a seasoned scholar) is not merely to set some record straight. Instead, presumably the goal is to end the torture of lethal injection. How might Professor Lain’s book help accomplish this goal? People must tell these secrets.

While one might think that telling policymakers and

judges might be the fastest way to effectuate change,138 the whiplash of power shifts in American governments over the past decade suggest that change might only survive until the next election.139

Shifts in popular opinion, by contrast, become more difficult to undo.140 Perhaps this is why Professor Lain wrote this book for the general public and not just academics.

One goal, then, of telling lethal injection secrets is to debunk the cultural narrative about this method. Indeed, many observers and citizens alike wrongly view the lethal injection procedure as a legitimately medical one that humanely allows the state to execute its murderers by gently ushering them into permanent sleep. A common, more accurate understanding of lethal injection as torture would go a long way to ending the practice, at least as states currently use it.

Interestingly, a pervasive understanding of even one of the seven secrets identified above could be enough to debunk the common misunderstanding. Telling the secret of the faux science, particularly when contrasted with the process that veterinarians use to euthanize animals, demonstrates why peaceful, medical executions are a myth. The secret of the torturous drugs and what they actually do to the human body—a form of hidden waterboarding— likewise creates a sharp contrast to the visual image of the false lethal injection medical narrative. The secret of erroneous procedures, coupled with the secret of the

unqualified individuals attempting to kill on behalf of the state, should alone debunk the common notion of what lethal injection looks like, showing that it is not competent or professional.

The secret of the quasi-criminal means by which states have endeavored to obtain the needed drugs further casts doubt on what the state is trying to do with lethal injection. As with the secret of the erroneous protocols, these efforts to avoid transparency and to hide what the state is actually doing suggests a level of guilt and impropriety on the part of the government and its employees. If lethal injection were such a reasonable, humane method of execution, states would not have to go to such lengths to hide their actions.141 Further, the secret of actions of the medical profession to disassociate itself from executions signals that the state is doing something untoward in its use of lethal injection. And so much of the reason for disassociation relates to the secret of how prisons manage the executions.142

While any one of the secrets might disqualify lethal injection as a legitimate method of execution, collectively they suggest an overwhelming need for a ban of this method with its likelihood of torturing the inmates subjected to it.143 Whether the product of malice or kakistocracy, the use of lethal injection should alarm citizens and result in a demand for a different approach to the death penalty. But such a response will only result if the secrets of lethal injection are no longer secret—if people share the story Professor Lain has compiled and tell the secrets.

Legislatures provide perhaps the best venue to then debate and reform execution methods. While historically perhaps public opinion might have dissuaded such debate,144 such debates may be more apropos in an era where state legislatures have steadily abolished the death penalty.145

At the very least, state legislative hearings could serve to tell many of the lethal injection secrets Professor Lain’s book has revealed. Expert testimony, engagement with the science of the drugs, a discussion of the protocols used, an exploration of the qualifications of the executioners, and consideration of the oppositional views of doctors and pharmacists could all help tell the secrets of lethal injection. It is this kind of fact-finding inquiry (and truth telling) that legislatures do well.

Importantly, individual legislators can initiate such hearings without widespread support in the legislature.

Committee chairs tend to have power over such hearings, although legislative rules vary widely from state to state. In any event, legislative hearings provide a valuable tool by which one could tell the secrets of lethal injection, one likely to increase the knowledge of the public, which could in turn generate its own response.146

Legislatures can also respond to lethal injection secrets told in two other ways. First, legislatures could provide oversight to prisons and cease the blind delegation of authority to departments of correction. Further, legislatures could require departments of correction to justify the legitimacy of their methods prior to the executions.

Legislatures could also repeal secrecy statutes or otherwise legislate against hiding the details of lethal injection from the public.147 In particular, legislatures should require the disclosure of the drugs being used and their sources. The current model prevents prisoners from challenging state-imposed torture with any real knowledge of the protocols the prison will use against them.148

Realistically, it may take some degree of public pressure or another botched execution to influence legislators to engage. But telling the secrets of lethal injection could accomplish exactly that.

Courts, of course, could declare lethal injection unconstitutional or otherwise restrict its use. At the very least, courts could require transparency with respect to the

execution protocols.149 Ongoing litigation has made these kinds of requests for over a decade.150

The Supreme Court’s method of execution cases, however, have adopted a doctrine that essentially forecloses execution challenges under the Eighth Amendment.151 In Baze v. Rees, the Court required the petitioner to demonstrate that the method in question posed a “substantial” or “objectively intolerable” risk of serious harm.152

In Glossip v. Gross, the Court expanded this test in again rejecting an Eighth Amendment challenge to a lethal injection protocol, this time one that used midazolam.153 In applying the Baze test, the Court expanded the doctrine by squarely putting the burden on the prisoner to provide a detailed alternative protocol that would likely reduce the substantial risk of severe pain.154 The outrageousness of this idea—that a prisoner must design a less harmful execution protocol155 and prove its likelihood of reduced harm in order to keep the state from torturing him—shows the level of complete deference a majority of the Court has accorded to state execution procedures.156 And the Court knows the lethal injection secrets.157

States also have constitutional analogues to the Eighth Amendment in their state constitutions. And these

analogues provide an additional opportunity to challenge lethal injection.158 Even if federal and state challenges are unsuccessful, they are valuable in providing another venue by which prisoners can tell the secrets of lethal injection.159

The executive branch can also play a role in ending the torture of lethal injection. The obvious and most direct route is the option of clemency granted by the Governor or clemency board, depending on the jurisdiction.160 The basis for such a grant can be simply to avoid torture when the method in question is lethal injection.

To the extent, though, that clemency may be politically unpalatable, states should endeavor to develop processes by which their executions are not forms of torture. Given the volume of problems with lethal injection, it seems unlikely that states could remedy such procedures to avoid torture.

And at the very least, an executive branch understanding of these secrets might influence the executive branch to mitigate at least some of the problems currently present. Certainly, Professor Lain’s book could encourage a greater degree of transparency and end the attempts to continue secrecy.

Part of the problem, of course, is that the executive branch, in the form of departments of correction, are largely responsible for the secrecy in the first place. In that context, telling lethal injection secrets could serve to promote a higher degree of accountability for prison officials. The legislatures have put the prisons in a terrible position, asking them to perform a method of killing that relies on medical and scientific knowledge without providing

such knowledge. The absence of available qualified people further exacerbates this problem and leaves prison officials in the position of trying to perform lethal injections without knowing how to perform them in any competent way.

Instead of telling the secrets of lethal injection leading prison officials to move into a defensive posture of hiding, transparency actually gives officials the opportunity to admit their lack of knowledge and expertise.161 Pushing the issue of how to execute back to the legislature, where states could study possible options, seems vastly preferable to continuing the decades long charade of lethal injection.

Justice Alito’s opinion in Glossip v. Gross begins with the supposed truism that if the death penalty is constitutional, there must be a constitutional way to execute someone.162 But his approach ignores the corollary point, which is that there are clear constitutional limits on the use of the death penalty, particularly those uses that are “cruel and unusual.”163

As evidenced by Professor Lain’s book, lethal injection is a cruel and unusual punishment.164 While the Court is likely to disagree, it has explained that torture is indeed unconstitutional.165 One does not have to engage in complicated analysis to reach this conclusion. Lethal injection, by

essentially waterboarding inmates, constitutes a form of torture. That it is hidden makes it perhaps doubly objectionable, with the state hiding from its citizens the torturous killing it is engaging in with its lethal injections.

Once the public understanding concerning lethal injection shifts and people realize that it does not put inmates to sleep gently but instead waterboards them, it seems possible if not likely states may abandon lethal injection. Given that lethal injection has comprised most of the executions since the Court reinstated the death penalty in 1976, it is worth exploring whether the abolition of lethal injection would mean the abolition of the American death penalty.

The litigation over lethal injection during the past two decades has led states to develop new methods of execution and reinstate old ones. Alabama and Louisiana have adopted nitrogen hypoxia as a method, with other states approving it or considering approving it.166 Tennessee and South Carolina have reinvigorated electrocution as a method of execution.167 And most recently, South Carolina has used a firing squad becoming the second state (along with Utah) to use that method.168 The existence of any of the three as a primary method of execution, however, may convince states to abolish the death penalty or at least conduct fewer executions.

Unlike lethal injection, nitrogen hypoxia executions do not hide the struggles of the inmate.169 The inmate is strapped to a chair, and the mask on his face begins releasing nitrogen, which will ultimately displace the oxygen in his lungs and suffocate him.170 These executions, however, entail a visible struggle.171 The inmate initially holds his breath and tries not to breathe in the nitrogen.172 When this fails, a physical struggle ensues, with his lungs and

body fighting to breathe and reject the nitrogen that is filling his lungs.173 In the few examples of such executions, the inmate has struggled for fifteen minutes or more before finally succumbing.174 Nitrogen hypoxia executions are brutal to watch and show the torture that the state inflicts firsthand.175

The negative public opinion of nitrogen hypoxia executions further might reflect its historic use in Nazi concentration camps.176 This history might color the degree to which citizens will accept nitrogen hypoxia as a method of execution.177

Electrocution has already met widespread disapproval in American history.178 Lethal injection was a product of this dissatisfaction. The possible redeeming virtue for electrocution is that it is faster than lethal injection.179 But the sheer brutality of electrocuting someone to death may offend the sensibility of individuals who might otherwise approve of capital punishment. The burning of the flesh and its emanating smell will certainly not convince bystanders

that this method of execution is anything but a kind of torture.180

In addition, firing squads might also work to convince the citizenry and politicians to abandon the death penalty. By some accounts, death by firing squad is the most humane of the six execution methods used in the United States.181

But it looks like murder. Perhaps because it is. The act of shooting another person is the identical act for which states execute many inmates. Its nature is much more obvious—there are clear killers (state employees) who end the life of the condemned by shooting him.

It is this exact view that lethal injection is attempting to hide by using a paralytic. With a paralytic, one cannot really see the state engaged in killing. But with a firing squad, one clearly can.

Indeed, the method of execution decision relates to the degree to which a state is able to differentiate its killing

from the killing that it is condemning and punishing. If both look like murder, the population seems to be less comfortable than when the two look different.182

Lethal injection, with all of its secretiveness and its false narrative of humaneness, seems to be different than murder to those that don’t understand its secret torture. As discussed, though, it is worse in most cases than other methods because it involves the torture of the condemned prisoner it is killing. When people start to understand that killing by lethal injection is more brutal than the average murder, people will want to abandon it as a method.

The other available methods, though, are less likely to garner public support, in part because they are harder to keep secret. Nitrogen hypoxia does not hide the torture it imposes. Neither does electrocution. And firing squads look identical to murder.

When no methods seem palatable, the death penalty will disappear because states will cease to use it.183 Even now, juries are increasingly choosing life without parole as a sentencing option, even in the most conservative districts.184 While there has been a slight increase in executions this year, new death sentences continue to decline, with less than thirty new sentences a year.185 One can imagine juries not choosing death when they believe that a death sentence will result in the state torturing the condemned.186

In sum, telling secrets could possibly end lethal injection.187 These kinds of revelations are bad for the brand of the death penalty, which is supposed to be careful, precise, and trustworthy. Telling the secrets will inject well-deserved distrust in lethal injection as a method of execution. And without lethal injection, the death penalty is likely to disappear because none of the alternative methods—nitrogen hypoxia, electrocution, or firing squads—offer palatable options that distinguish state killing from the murders for which the state imposes the death penalty. They also do not avoid inflicting torture on the condemned.

The secrets of lethal injection are significant, surprising, and narrative shattering. Those who read Professor Lain’s book will understand how inaccurate the perception of lethal injection as a peaceful, humane killing is. The secrets of faux science, torturous drugs, broken procedures, inept executioners, drug smuggling, medical profession opposition, and lack of oversight all point to the need to abandon lethal injection.

Telling these secrets can have an impact with the public at large, in the legislature, in the courts, and in the executive branch, all of which can influence the decline or even abandonment of lethal injection. The abandonment of lethal injection has the power to lead to the abolition of the death penalty altogether given the challenges that other methods face in terms of public opinion. Even if death penalty abolition is a long way away, telling these lethal

injection secrets is the best way to end the torture of lethal injection.

As a final note, one critique of lethal injection critiques is that they are no more than backhanded ways to abolish the death penalty.188 Professor Lain’s book, however, shows that these critiques are meritorious in their own right. If the death penalty suffers as a result of telling these lethal injection secrets, then it deserves it for being so much less accurate, competent, and humane than it purports to be. For an institution founded on desert, perhaps it is time for the death penalty to receive what it deserves.

--- FOOTNOTES ---

Article 2

Volume 4 Number 1 Fall 2025

William W. Berry III University of Mississippi, [email protected]

Cover Page Footnote Cover Page Footnote Associate Dean for Research and Montague Professor of Law, University of Mississippi. The author would like to thank Eric Berger, Kathryn Miller, Dale Baich, Meghan Ryan, Martin Edwards, Matthew Baker, Almas Khan, Debby Denno, Alex Klein, and Corinna Lain for helpful comments on the draft and/or the ideas of this book review essay.

This article is available in Georgia Criminal Law Review: https://digitalcommons.law.uga.edu/gclr/vol4/iss1/2

* Associate Dean for Research and Montague Professor of Law, University of Mississippi. The author would like to thank Eric Berger, Kathryn Miller, Dale Baich, Meghan Ryan, Martin Edwards, Matthew Baker, Almas Khan, Debby Denno, Alex Klein, and Corinna Lain for helpful comments on the draft and/or the ideas of this book review essay.

TABLE OF CONTENTS

7. THE SECRET OF THE LEGISLATIVE DELE-

INTRODUCTION

OF

JUST.

CRIM.

1 In its history, states have used six different methods of execution: hanging, firing squad, electrocution, lethal injection, cyanide gas, and most recently, nitrogen hypoxia. Methods of Execution, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/executions/methods-ofexecution (“Methods”). 2 Executions in the United States, 1608-2002: The ESPY File, NAT’L ARDATA, CHIVE https://www.icpsr.umich.edu/web/NACJD/studies/08451/datasets/0001/variables/V11?archive=nacjd (last visited Feb. 15, 2025); Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35 WM. & MARY L. REV. 551, 563–66 (1994). 3 Deborah W. Denno, Back to the Future with Execution Methods, in THE EIGHTH AMENDMENT AND ITS FUTURE IN A NEW AGE OF PUNISHMENT 212 (Meghan J. Ryan & William W. Berry III eds., 2020). 4 Total number of executions in the United States from 1976 to 2024, by https://www.statista.com/statismethod of execution, STATISTA, tics/199086/total-number-of-executions-in-the-us-by-method/. Between 1976 and 2024, 1413 of the 1594 executions (89%) were by lethal injection. Id. 5 Gregg v. Georgia, 428 U.S. 153 (1976) (upholding Georgia’s new capital punishment statute).

6 CORINNA BARRETT LAIN, SECRETS OF THE KILLING STATE: THE UNTOLD STORY OF LETHAL INJECTION (2025). Professor Lain is SD Roberts & Sandra Moore Professor of Law at the University of Richmond School of Law. 7 To be fair, Professor Lain’s manuscript is so exhaustive that exploring next steps is necessarily beyond its scope. Further, it might seem to be an odd time to talk about death penalty abolition in light of the spike in executions this year, see Fact Sheet infra note 145, and the presiorder 2025 dent’s (https://www.whitehouse.gov/presidential-actions/2025/01/restoringthe-death-penalty-and-protecting-public-safety/). And yet, the secrets here are timeless, and the overall trajectory is still toward abolition. See generally DAVID GARLAND, PECULIAR INSTITUTION – AMERICA`S DEATH PENALTY IN AN AGE OF ABOLITION (2012) (suggesting America is ultimately on the same trajectory as Western abolitionist nations); see infra note 145 and accompanying text.

executive

January

I. THE SECRETS OF LETHAL INJECTION

8 See LAIN, supra note 6, at 7–29. 9 Id. at 26. 10 Midazolam was meant to anesthetize Lockett. The state chose it as a drug a mere four days before the execution, and no one involved had experience using it. Id. at 9–13, 28. 11 Id. at 22–23. He eventually became sedated and even unconscious, but never insensate, in a stage of anesthesia. Id. 12 Id. at 23. 13 Id. 14 Id. 15 Id. at 24. 16 Id.

A. THE SECRETS

17 Id. at 25. 18 Id. 19 Id. at 25–26. 20 Id. 21 Id. at 26. 22 The Death Penalty Information Center summary of execution methods includes a list of what information states keep secret about their methods. DEATH PENALTY INFO. CTR., State-by-State Execution Protocols, https://deathpenaltyinfo.org/executions/methods-of-execution/state-by-state-execution-protocols. 23 Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35 WM. & MARY L. REV. 551, 563–64 (1994). 24 GARLAND, supra note 7.

25 See LAIN, supra note 6 at 31. See also Macrina Cooper-White, Here’s the Scary Truth about Science & the Death Penalty, HUFFINGTON POST (Mar. 13, 2014) (quoting methods of execution expert Deborah Denno). 26 LAIN, supra note 6 at 30. Chapman said that he was an “expert in dead bodies but not an expert in getting them that way.” Id. 27 Id. at 32; DEATH PENALTY INFO. CTR., Methods of Execution, https://deathpenaltyinfo.org/executions/methods-of-execution. 28 Id. at 31; HUMAN RIGHTS WATCH, SO LONG AS THEY DIE: LETHAL INJECTIONS IN THE UNITED STATES 15 (2006) (quoting Jay Chapman). 29 Id. at 32. Chapman was surprised by the widespread adoption of his lethal injection protocol, particularly by other states: “Not in my wildest flight of fancy would I have ever thought that it would’ve mushroomed into what it did.” Id. 30 Id. 31 Id. at 32–33

32 Id. at 33. 33 Id. In other words, making up a procedure with excessive amounts of drugs never mixed before was a scientific experiment likely to yield freakish results. 34 Id. at 34. 35 Id. at 34; Transcript of Testimony of Eric Katz, M.D. at 564, Warner v. Gross, No. CIV-14-0665-F, 2014 WL 7671680 (W.D. Okla. Dec. 22, 2014). A California study showed that six of eleven inmates “continued to breathe for up to nine minutes after thiopental was injected.” LAIN, supra note 6, at 35; Transcript of Testimony of Lisbeth Exon at 356, Warner v. Gross, No.CIV-14-0665 F, 2014 WL 7671680 (W.D. Okla. Dec. 22, 2014). 36 LAIN, supra note 6, at 36. 37 Id. 38 Those who learn this secret opt to avoid lethal injection when given

the choice. Five of the seven inmates executed in Tennessee in recent years have chosen electrocution over lethal injection. LAIN, supra note 6, at 59. The two methods are equally torturous, but electrocution is much quicker. Id. 39 When used in surgery, this drug requires use of a ventilator to keep patients breathing with a paralyzed diaphragm. LAIN, supra note 6, at 60. 40 LAIN, supra note 6, at 60 (quoting Declaration of Mark J. S. Heath, M.D., in Cooey v. Strickland). Decision and order on Motion For Stay of Execution and Preliminary Injunction, at 70, In re: Ohio Execution Protocol Litigation, 860 F.3d 881 (6th Cir. 2018) (describing the paralytic’s effect as “a sensation akin to being buried alive”); HUMAN RIGHTS WATCH, SO LONG AS THEY DIE: LETHAL INJECTIONS IN THE UNITED STATES 2 (2006) (“If the prisoner is not sufficiently anesthetized before being injected with pancuronium bromide, he will feel himself suffocating but be unable to draw a breath—a torturous experience, as anyone knows who has been trapped underwater for even a few seconds.”). 41 LAIN, supra note 6, at 60. 42 LAIN, supra note 6, at 61. 43 Id. One doctor explained, “Any person or animal who’d been given pancuronium, they are going to appear serene and tranquil and peaceful and comfortable, regardless of whether they are awake and in agony.” Id. (quoting Transcript of Mark Heath, M.D., at 130, Baze v. Rees (Circuit Ct. Ky., April 20, 2005 . 44 LAIN, supra note 6, at 62. In Baze, the Court adopted Kentucky’s

identified interest in using pancuronium bromide to hide from view the physical consequences of lethal injection drugs. Id. at 63–64; Baze, 553 U.S. at 57–58. 45 LAIN, supra note 6, at 62. 46 Id. The Supreme Court in Baze found that the hastening of death justified the use of pancuronium bromide, even though it does not have that effect. Id.; Baze, 553 U.S. at 57–58. 47 LAIN, supra note 6, at 65. 48 Id. 49 Id. 50 Id.; Wan & Berman, supra note 19 (quoting Dr. Mark Heath, professor of anesthesiology at Columbia University). 51 LAIN, supra note 6, at 66; Harbison v. Little, 511 F.Supp.2d 872, 883 (M.D. Tenn. 2007) (quoting Dr. David Lubarsky); Petition for a Writ of Certiorari, at 7 note 9, Howell v. Florida, (No. 13-1021, 2014 WL 787196, at 7 note 9 (Fla. Feb. 25, 2014), (quoting Dr. David Lubarsky). 52 LAIN, supra note 6, at 66–67. Perhaps a helpful way to think about this is in terms of levels anesthetic depth—the degree to which a depth of anesthesia is achieved that will keep the inmate from feeling excruciating stimuli. Mild anesthetic depth, for instance, might render a patient unresponsive to gentle stimuli but not to excruciating stimuli.

53 Id. There are further problems as well, including drug interaction. Id. With sodium thiopental, the drugs can slow the heart which has the effect of extending the procedure. Id. 54 Id. at 71–72. This drug acts quickly but wears off quickly, making it likely that the inmate will not remain under anesthesia. 55 DEATH PENALTY INFO. CTR., supra note 22; LAIN, supra note 6, at 75– 79. 56 LAIN, supra note 6, at 75–79. 57 Id. It is worth mentioning the other alternatives of etomidate and fentanyl as the anesthetic. Id. at 86–92. 58 Id. 59 Id. at 86-93. Many of the three-drug protocol executions also show this same result. Id. 60 Id. at 89. 61 Id.

62 Id. at 98–99. The error rate is just under 10% of what is visible (as discussed, the paralytic hides many torturous executions). Id. 63 Id. 64 Id. 65 Id. at 99–101. Not having doctors involved only heightens the chance for error. 66 Id. at 103. 67 Id. at 103–104. 68 Id. at 105. 69 Id. at 103–04. 70 Id. at 106. 71 Id. 72 Id. at 106–07. England rejected the idea of lethal injection in 1954 based on “anatomical difficulties.” Id. at 109. Melvin Wingersky, Report of the Royal Commission on Capital Punishment (1949-1953): A Review, 44 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 695, 714 (1954).

73 LAIN, supra note 6, at 115. 74 Id. at 116. 75 Id. 76 Id. at 117. The size of the bolus can similarly be a problem given the massive amount of pressure required to push the drugs through the tubing, again making the collapse of the vein, not only possible but likely. Id. The fact that the people attempting the injection are not medical professionals also makes this outcome likely. Id. 77 Id. at 117–18. 78 See id. Texas has had problems with about eighty percent of its lethal injections. Id. at 118. 79 See id. at 118–19. 80 See id. at 120–24. 81 See id. at 120. 82 See id. at 120–21.

83 See id. at 121–23. 84 See id. at 121–23. 85 Id. at 122–23. 86 Id. at 125. 87 Id. at 125–29; Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035 (W.D. Mo. 2006), at *5–7. 88 LAIN, supra note 6, at 130. 89 Id. 90 Id. at 131. 91 Id. 92 Id. at 131.

93 Id. at 131–32. An important distinction is that medical professionals aim to heal their patients, not kill them. 94 Id. 95 Id. at 136–37. 96 Id. at 141. 97 Id. 98 Id. at 142. As with most European countries, Italy did not want a company producing death penalty drugs on its soil. Id. Also, the relocation resulted from a decline in thiopental use in surgeries. Id. at 141– 42. 99 Id. at 142–43. 100 Id. at 143. It had actually banned them earlier—in 2005, but they had not included therapeutics. 101 Id. at 146–48. 102 Id. at 147–50.

103 Id. at 151–59. 104 See Eric Berger, Courts, Culture, and the Lethal Injection Stalemate, 62 WM. & MARY L. REV. 1 (2020). There are collateral consequences as well, with pharmaceutical companies not wanting to deal with states for fear that the states will use their drugs in executions. Id. 105 LAIN, supra note 6, at 160. 106 Id. at 161. 107 Id. 108 Id. at 162–85. 109 Id.; Berger, supra note 104. Tennessee is a particular example that Prof. Lain cites in her book. LAIN, supra note 6, at 183-85. 110 LAIN, supra note 6, at 186. 111 Id. at 187–88.

112 Id. at 190. 113 Id. 114 Id. 115 Id. 116 Id. at 191. 117 Id. 118 Id. at 192–94. 119 Id. at 192–95. 120 Id. 121 Denno, infra note 123. 122 LAIN, supra note 6, at 210.

123 Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 FORDHAM L. REV. 49, 95 (2007); LAIN, supra note 6, at 210. 124 Indeed, there is a complete lack of regulation in most states. LAIN, supra note 6, at 212. 125 Baze, 553 U.S. at 74–75 (Stevens, J., concurring). The Court perplexingly rested much of its decision in Baze on the need to defer to state legislatures when the legislatures played no role in the lethal injection protocols. LAIN, supra note 6, at 210; Eric Berger, Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making, 91 B.U.L. REV. 2029, 2084 (2011). 126 LAIN, supra note 6, at 214. 127 Id. at 214–18. For instance, Arizona’s DOC announced in 2023 that it did not have “the necessary institutional knowledge and expertise to conduct an execution.” Id. at 218; Jimmy Jenkins, Arizona Lacks Knowledge and Expertise to Conduct Execution, Governor and Prisons Chief Say, ARIZ. REPUBLIC (Mar. 16, 2023), https://www.azcentral.com/story/news/local/arizona/2023/03/16/arizona-lacks-expertiseto-conduct-execution-officials-tell-court/70014626007/. 128 LAIN, supra note 6, at 214–20. Tennessee simply replaced “electrocution” with “lethal injection” without bothering to change the rest of the protocol. Id. at 220.

B. HOW STATES KEEP SECRETS

129 Lain, supra note 6, at 220–24. 130 Id. at 237–38. 131 Id. at 241. 132 Id. 133 Id. 134 Id. at 254–57.

II. HOW TELLING CAN END TORTURE

A. PUBLIC RESPONSE

135 Id. 136 The writing of the book, as detailed in the acknowledgements, was its own faith journey. See UNIVERSITY OF RICHMOND SCHOOL OF LAW, Corinna Lain Secrets of the Killing State June 11, 2025 Disciples Christian https://www.youtube.com/watch?v=R7O6vTwNRGY (video of Professor Lain sharing her faith journey in writing the book). 137 To be fair, her book achieves much without exploring the implications of her findings.

(YouTube,

Church,

July

3,

2025),

138 This approach has been successful in Europe with respect to the abolition of the death penalty, where elites ignored popular opinion and imposed their own bans. See William W. Berry III, The European Prescription for Ending the Death Penalty, 2011 WISC. L. REV. 1003 (2011). 139 For instance, consider the policy change on lethal injection from the Biden administration, which banned the use of pentobarbital, to the Trump administration which actively helps states obtain the lethal injection drugs. 140 Indeed, the public opinion with respect to the death penalty itself has shifted gradually over time. DEATH PENALTY INFO. CTR., Public Opinion, https://deathpenaltyinfo.org/policy-issues/policy/public-opinion-polls.

141 Part of what works to the advantage of states here is the unfortunate reality that people really do not want to know how the state is killing, perhaps even so they can pretend that the state is not killing on their behalf. 142 The doctors oppose the killing as opposed to saving, but even more so oppose the way in which the prisons use these drugs—in ways that do not work in the way the prisons say they do. 143 It is worth noting that some approaches bear less risk than others (the 1-drug protocol is less dangerous than the 3-drug protocol). See Eric Berger, Evolving Standards of Lethal Injection, in THE EIGHTH AMENDMENT AND ITS FUTURE IN A NEW AGE OF PUNISHMENT (Meghan J. Ryan and William W. Berry III, eds.) (2020).

B. LEGISLATIVE RESPONSE

144 The response to the Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), captures this sentiment, where 35 states passed new capital statutes after the Court declared Georgia’s unconstitutional. See Corinna Barrett Lain, Furman Fundamentals, 82 WASH. L. REV. 1, 20 (2007). 145 Indeed, a number of state legislatures have abolished the death penalty in recent years: These states include New Jersey (2007), New York (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), Delaware (2016), Washington (2023), New Hampshire (2019), Colorado (2020), and Virginia (2021). DEATH PENALTY INFO. CTR., State by State, available at https://deathpenaltyinfo.org/stateslanding; DEATH PENALTY INFO. CTR., Fact Sheet, available at https://deathpenaltyinfo.org/facts-and-research/fact-sheet. The Nebraska legislature also abolished the death penalty in 2015, but its citizens voted to reinstate it in a 2016 referendum. Vincent Pena, Nebraska voters reinstate the death penalty in landslide vote, AP NEWS, (Nov. 9, 2016, 2:18 AM), https://apnews.com/article/nebraska7f5e5b0db24246a893677726a6dfc415. To be fair, 2025 has seen a spike in executions, but at the same time, a decrease in new death sentences. DEATH PENALTY INFO. CTR., Mid-Year Review 2025: New Death Sentences Remain Low Amidst Increase in Executions, July 10, 2025, https://deathpenaltyinfo.org/news/mid-year-review-2025-new-deathsentences-remain-low-amidst-increase-in-executions (“Mid-Year Review”).

C. JUDICIAL RESPONSE

146 There is certainly potential for a feedback loop here between the people and their representatives. 147 Given the complicated political landscape, one might wonder whether lethal injection can receive this kind of attention, especially given the relatively small number of executions (less than 30 a year). At the same time, a number of states are restarting their executions after a delay (based in part on lethal injection challenges), so examining the protocols to see how they are working might actually be timely. 148 There are a number of reasons for this including hiding the manufacturer as well as more generally hiding the torture.

149 There are serious questions as to whether, for instance, secrecy statutes are constitutional. LAIN, supra note 6, at 269–74. 150 Berger, supra note 104. 151 The Eighth Amendment bars “cruel and unusual punishments.” U.S. CONST. amend. VIII. 152 Baze v. Rees, 553 U.S. 35,39 (2008). 153 Glossip v. Gross, 576 U.S. 863, 863 (2015). 154 Id. at 863-864. 155 When prisons cannot even develop their own execution protocols correctly, see supra Part I.A.3., the idea that a prisoner, without access to the state’s facilities and resources, could nonetheless invent his own less harmful protocol, seems laughable. 156 The Court did not even engage with the actual science despite having a well-developed lower court record. Glossip v. Gross, (2015). 157 See Glossip, 576 U.S. at 864. The Court’s narrative that lethal injection critiques are no more than death penalty critiques has blinded the Court to the torturous consequence of allowing lethal injection.

D. EXECUTIVE BRANCH RESPONSE

158 For a possible application to nitrogen hypoxia, see Berry infra note 178. 159 Indeed, many of the secrets that Professor Lain has unearthed come from lethal injection litigation. See Lain, supra note 6 at 210–240. 160 See, e.g., Rachel E. Barkow & Mark Osler, Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal, 82 U. CHI. L. REV. 1 (2015).

III. LETHAL INJECTION AND ABOLITION

161 Eric Berger, The Executioners’ Dilemmas, 49 U. RICH. L. REV. 731 (2015). 162 Glossip v. Gross, , 869 (2015). 163 U.S. CONST. amend. VIII. Indeed, the history of botches and mistakes showed the Oklahoma protocol using midazolam was really dangerous. See Eric Berger, Gross Error, 91 WASH. L. REV. 929 (2016). 164 See Lain supra note 6 at 241–274. See also William W. Berry III & Meghan J. Ryan, Cruel Techniques, Unusual Secrets, 78 OHIO ST. L.J. 403 (2017). 165 Bucklew v. Precythe, 587 U.S. 119, 130–31 (2019) (noting that Patrick Henry’s statement that the intent of barring “cruel and unusual punishments” was to keep the legislature from inflicting “tortures” and “barbarous” punishments). See also Meghan J. Ryan, The Death of the Evolving Standards of Decency, 51 FLA. ST. U. L. REV. 255 (2024).

166 See Berry, infra note 182. 167 DEATH PENALTY INFO. CTR., Methods of Execution, supra note 1. 168 Id. 169 See Berry, infra note 182. 170 Id. 171 Id. 172 Id.

173See id. at 1136 (describing inmates subjected to nitrogen hypoxia struggling to breathe and fighting against their restraints). 174 See id. at 1164. 175 Indeed, there are good arguments as to why nitrogen hypoxia executions are cruel and unusual punishments under state constitutions. See generally id. 176 See, e.g., Michael J. Zoosman, The Unconscionable Nazi Legacies of Executions by Gas and Lethal Injection, JURIST (Feb. 7, 2024 01:53:11 PM), https://www.jurist.org/commentary/2024/02/the-unconscionablenazi-legacies-of-executions-by-gas-and-lethal-injection/. Of course, the normalization of “Nazi” as a pejorative in modern political dialogue and the lack of widespread understanding of how awful concentration camp gassings were may make this connection seem less horrifying than it actually is. 177 This was certainly true with the few cyanide gas executions that occurred after World War II with public discomfort leading to the abandoning of this method. 178 See Denno, supra note 2. 179 See DEATH PENALTY INFO. CTR., Execution Method Descriptions, https://deathpenaltyinfo.org/executions/methods-of-execution/description-of-each-method. (describing each step in the process of electrocution and lethal injection).

180 The South Carolina legislator that proposed the use of firing squads recently echoed this sentiment. https://www.thestate.com/opinion/article301415634.html. 181 See, e.g., Glossip v. Gross, , 977 (2015) (Sotomayor, J., dissenting) (“At least from a condemned inmate's perspective, however, such visible yet relatively painless violence may be vastly preferable to an excruciatingly painful death hidden behind a veneer of medication.”) (suggesting firing squad executions are less painful than lethal injections). At least one court, however, has found execution by firing squad to be more painful than lethal injection. Glossip v. Chandler, 2022 WL 1997194 (W.D. Okla., June 6, 2022) (“it is difficult to conceive that a method of execution which requires the sternum to be shattered as the bullets make their way to the cardiovascular bundle (and on to the ribs or spinal column) can be called painless.”); Transcript of NonJury Trial before the Honorable Stephen P. Friot, Feb. 28-Mar. 7, 2022, W.D. Okla., Case No. Civ-14-665-F, Testimony of Dr. Ervin Yen, p. 1160-65 (“It’s no contest. It’s much more with a gunshot to the heart and chest”) (comparing Oklahoma’s midazolam lethal injection protocol to a firing squad execution).

It is also not clear that firing squad executions will go smoothly. Indeed, South Carolina botched one of its two firing squad executions in 2025. Sam Levin, Revealed: Autopsy suggests South Carolina botched firing squad execution, THE GUARDIAN, (May 8, 2025, 2:04 PM), https://www.theguardian.com/us-news/2025/may/08/south-carolinafiring-squad-execution.

182 See William W. Berry III, American Procedural Exceptionalism, 17 CORNELL J. L. & PUB. POL’Y 481, 483 (2008) (arguing that retention relates to the legitimacy of process). 183 This de facto abolition has occurred before. There were no executions in the United States from 1968-77. See Lain, supra note 144 at 19 (stating there were no death penalty executions between 1968 and 1977). 184 See supra Lain note 144. 185 See DEATH PENALTY INFO. CTR., Mid-Year Review, supra note 145. 186 An example of this kind opposition was the public response to the execution of Marcellus Williams in 2024 by Illinois despite his claims of innocence and prosecutorial opposition. Missouri Executes Marcellus Williams Despite Prosecutor’s Opposition, EQUAL JUSTICE INITIATIVE

CONCLUSION

(Sept. 25, 2024), https://eji.org/news/missouri-executes-marcellus-williams-despite-prosecutors-opposition/; see also William W. Berry III, Local Prosecutors and Capital Overrides, 22 OHIO ST. J. CRIM. L. __ (2025) (arguing for a prosecutorial veto in capital cases). 187 This is a methods-based echo of the Marshall hypothesis—Justice Marshall’s view from Furman that informing citizens about the death penalty would lead to abolition. Furman v. Georgia, 408 U.S. 238, 362 (Marshall, J., concurring); see also Alvin D. Mitchell, The Effect of the Marshall Hypothesis on Attitudes Toward the Death Penalty, 13 RACE, GENDER, & CLASS 221 (2006); Dwight Aarons, The Marshall Hypothesis and the Rise of Anti-Death Penalty Judges, 80 TENN. L. REV. 381 (2013).

188 If so, the critique also works the other way—the Court’s methods of execution cases are so doctrinally broken because they are self-serving attempts to save the death penalty. See Alexandra L. Klein, The Eighth Amendment’s Paper Tiger: Pain, Executions, and the Cruel and Unusual Punishments Clause, 17 NE. U. L. J. 1 (2025).