Recent cases demonstrate the ordinary cruelty of capital punishment

America's death penalty history is filled with notorious and disturbing cases that reveal its continuing cruelty.

In just the last two weeks, two cases offered vivid examples of capital punishment’s assault on common standards of decency and civilized conduct.

First, on Nov. 23, a Tennessee judge vacated the death sentence of Pervis Payne, saying that Payne “is intellectually disabled pursuant to Tennessee law as well as the decisions of the United States Supreme Court.” While Payne escaped execution, his case is a reminder that death row is filled with inmates who are more disabled than dangerous.

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This fact remains almost two decades after the Supreme Court said in Atkins v. Virginia that it was unconstitutional to sentence the intellectually disabled to death. In that case, the court noted what it called a “widespread judgment” that the intellectually disabled lack the culpability needed to justify a death sentence and that executing would be cruel because it served no penological purpose. It left the definition of what would count as an intellectual disability to the states to decide.

Yet shockingly defendants with intellectual disabilities continue to be executed almost two decades after Atkins.

The second case involved Doyle Hamm who died last week from cancer while on Alabama’s death row. Hamm survived a botched execution in 2018 after the execution team tried without success for two and a half hours to find a useable vein for the intravenous injection of lethal drugs.

As his lawyer explained, “Two people stood on either side of him attempting to access a vein. They ‘inserted needles multiple times on his left and right legs and ankles, each time forcing the needles into his lower extremities,’ They turned Hamm on his stomach, slapping the back of his legs, but could not get a vein. With peripheral access unavailable, other IV execution personnel next attempted central venous access through Hamm’s right groin. It was painful and bloody. Hamm prayed and hoped they would succeed.” 

Hamm’s case illustrates the physical cruelty that often occurs during executions which, according to the Supreme Court, are only allowable if they impose no more pain than is necessary to “extinguish life humanely.”

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There was nothing humane about what the state of Alabama did to Doyle Hamm or about what Tennessee nearly did to Pervis Payne.

Payne, who was sentenced to death for the 1987 deaths of Charisse Christopher, 28, and her 2-year-old daughter, Lacie, has maintained his innocence right from the start. Last week’s development in his case was only possible because the Tennessee legislature passed a law in April changing its definition of intellectual disability and allowing death row inmates like Payne to reopen their cases on the grounds that they suffer from such a disability. 

The law modernized Tennessee’s definition of intellectual disability to conform to the definition provided in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, namely a “significant limitation in intellectual ability and adaptive behavior, manifesting itself prior to the age of 18.”

However, death penalty states like Alabama, Florida, Georgia and Texas, and until this spring Tennessee, have evaded the Supreme Court’s Atkins decision by adopting narrow and unscientific definitions of intellectual disability. They also have refused to allow people sentenced prior to Atkins to raise legal challenges based on evidence of intellectual disability.

A ground-breaking 2015 study of the post-Atkins situation by Cornell Law Professor John Blume and three colleagues found that “from 2002 through 2013, only about 7.7 percent (371) of death row inmates or capital defendants have raised claims of intellectual disability.” Moreover, the total “success” rate for such claims was 55 percent.

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But the success rate of intellectual disability claims in death cases varied greatly. Blume reports that it was 11 percent in Georgia, and “in Florida, the success rate was zero.”

The failed claims of intellectual disability should alarm us, and behind this statistic lies further cruelty. As Harvard law professor Charles Ogletree explains, “Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows.”

In the words of former Supreme Court Justice Anthony Kennedy “to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being” because the “diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment.”

A commitment to avoiding cruelty and respecting the human dignity even of those it executes explains the wrong of what Alabama did to Doyle Hamm when it tried to put him to death. Hamm joined Willie Francis and Romell Broom as one three people to survive a botched execution in the last century. Make no mistake, his treatment in the execution chamber was no less cruel because he lived to tell the story.

In most instances when executions are botched, the condemned suffers before ultimately succumbing to the state’s effort to end their life. But the resulting cruelty and violation of dignity is just as great when such an execution succeeds as when it fails completely.

What’s more, botched executions are not all that unusual. They occurred in 3 percent of all the executions carried out in the United States from 1900-2010, with lethal injection being the most unreliable of all the methods used during that time. Since 2010 the situation has only gotten worse as states abandoned the standard three-drug protocol and turned to new, untried drugs and drug combinations. Between 2010 and 2020, newspapers and independent witnesses provided evidence that 28, or 8.4 percent, of the 335 lethal injections carried out in that time period were botched.

The inhumane consequences of such executions were amply demonstrated by a September 2020 National Public Radio investigation that found signs of pulmonary edema — fluid filling the lungs — in 84 percent of the 216 post-lethal injection autopsies it reviewed. Those autopsies revealed that inmates’ lungs filled while they continued to breathe, which would cause them to feel as if they were drowning and suffocating.

When we look closely at the people whom we sentence to death and what often happens to them in the execution chamber, what we find is that capital punishment has been and remains cruel. And as Charles Ogletree rightly observed, “the practice of the death penalty and the commitment to human dignity are not compatible.”

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America's death penalty, including "Gruesome Spectacles: Botched Executions and America's Death Penalty." Follow him on Twitter @ljstprof.