Oklahoma case shows cruelty of letting the condemned choose their method of execution

Oklahoma death row inmate James Coddington would rather die by the firing squad than by lethal injection. Given the dismal record of lethal injection in that state and across the nation, who can blame him?

But no one should underestimate the Kafkaesque cruelty and horror of such a choice.

The day before Christmas Eve, U.S. District Judge Stephen Friot ordered a temporary halt to Coddington’s execution, otherwise scheduled for March. The judge’s decision also allowed Coddington to join a pending federal lawsuit challenging the constitutionality of Oklahoma’s lethal injection protocol which includes the controversial drug midazolam. Midazolam has been used in many botched lethal injections, most recently Oklahoma’s November execution of John Marion Grant. Witnesses reported that as soon as the flow of midazolam started, Grant’s “entire body convulsed, shaking and jerking.”

The Washington Post quoted Associated Press reporter Sean Murphy who observed Grant “convulsing about two dozen times. Full body convulsions. And then he began to vomit, which covered his face.”

Coddington is required to make known his alternative if he wants to avoid lethal injection because of the Supreme Court’s 2015 Glossip v. Gross decision, which upheld the use of midazolam in lethal injections, but required that an inmate who wants to challenge any method of execution can only do so if he identifies a “known and available alternative method of execution.”

In Coddington’s case, he contended that he had already filed the paperwork needed to satisfy the Glossip requirement. Judge Friot found that in fact Coddington “thought he had already effectively communicated his choice of a firing squad” as his “alternative method of execution.” As a result, Coddington could pursue his lethal injection challenge.

What a sadistic twist of constitutional fate.

Coddington can join a suit contending that lethal injection is cruel only by conceding that there is a constitutional alternative and by electing to die by that method.

Today, many states have a menu of execution methods.

Eight states (Alabama, Arizona, Florida, Kentucky, Mississippi, Oklahoma, South Carolina, and Tennessee) include the electric chair among their available methods of execution. Seven states (Alabama, Arizona, California, Mississippi, Missouri, Oklahoma, and Wyoming) allow for the use of the gas chamber. One, New Hampshire, permits hanging. And four states (Mississippi, Oklahoma, South Carolina and Utah) authorize the firing squad as an alternative to lethal injection.

Coddington is not the first person sentenced to death to reject lethal injection, though he would be the first to die by the firing squad since 2010 if his challenge to Oklahoma’s lethal injection protocol succeeds.

In the last half century there have been only four executions by firing squad, all of them in Utah. They include the 1960 execution of James W. Rodgers, Gary Gilmore’s execution in 1977, John Albert Taylor’s in 1996, and the 2010 execution of Ronnie Lee Gardner. Gardner preferred this method of execution because of his “Mormon heritage.”

Taylor said he preferred to be shot because he did not want to “flop around like a dying fish” during a lethal injection.

But since 2010, electrocution — not the firing squad — has been the method most often substituted for lethal injection. Electrocution has been used in seven of the more than 350 executions carried out in the United States since that date. Five of those electrocutions occurred in Tennessee following the enactment in 2000 of a law allowing death row inmates who committed their offense prior to Jan. 1, 1999 to choose electrocution over lethal injection.  

The first was the 2018 execution of Edmund Zagorski, whose last-minute request to die in the electric chair set off a flurry of litigation before finally being granted. Zagorski chose the electric chair because he was convinced that death by lethal injection is “‘certain torture’” and that electrocution would be quicker and less painful. Like Coddington, Zagorski made his choice immediately following a botched lethal injection in his state. In Zagorski’s case it was Tennessee’s gruesome execution of Billy Irick.

After officials injected midazolam into Irick’s veins, he began to “gulp[] for an extended period of time,” choke, gasp, cough, and snore. A witness said that he moved his stomach, moved his head, and “briefly strain[ed] his forearms against the restraints.” Such movements suggest that Irick was conscious while the executioners injected the second and third drugs which would paralyze and then kill him. News reports quoted a doctor who said that Irick almost certainly felt intense pain during his execution. It took 20 minutes for him to die.

Talking about  Zagorski’s choice to be electrocuted, Supreme Court Justice Sonya Sotomayor wisely observed that he did not choose the electric chair “because he thought that it was a humane way to die, but because he thought that the three-drug cocktail that Tennessee had planned to use was even worse. Given what most people think of the electric chair, it is hard to imagine a more striking testament — from a person with more at stake — to the legitimate fears raised by the lethal-injection drugs that Tennessee uses.”

In another case, Sotomayor labelled execution by lethal injection a “nightmarish death: The condemned prisoner is conscious but entirely paralyzed, unable to move or scream his agony, as he suffers ‘what may well be the chemical equivalent of being burned at the stake.’”

Given this prospect, it is not hard to understand why Chapman might prefer to be shot.

His choice should give us no solace.

All shreds of dignity and humanity are stripped from those America puts to death in an illusory quest to even out the scales of justice. Making them choose how they will die is the final indignity and the cruelest choice of all.

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.