Three percent of US executions since 1900 were botched, study finds

"Given the gravity of the decision to put someone to death and the constitutional prohibition of cruel punishment," said Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science, "the fact that 3 out of every 100 executions are messed up should be a cause of serious concern to all Americans."

By culling through detailed and often grisly newspaper accounts of capital punishments that occurred over the past 111 years, Sarat and his team created a database -- the only one of its kind, said Sarat -- of all of the mentions of what he describes as "departures from the protocol of killing someone sentenced to death." He explained that such departures included, among other things, instances in which inmates caught fire while being electrocuted, were strangled during hangings (instead of having their necks broken) or were administered the wrong dosages of specific drugs for lethal injections.

"What was particularly interesting was the way the media represented these events in the early part of the 1900s," said Sarat. He and his team published a paper about this aspect of their work -- the cultural reception of botched executions from 1890 to 1920 -- in the current issue of the British Journal of American Legal Studies and also discussed it at the meeting of the Association for the Study of Law, Culture and the Humanities in Fort Worth, Texas, this past March. "In the vast majority of the stories about the botched executions, the narratives were both sensational and what we called 'recuperative' -- reporters consistently made the point that, despite the gruesomeness of the proceedings, the inmates didn't suffer, that justice was done. There was very little criticism of the process or questioning of the death penalty itself. The stories were used to sell newspapers and nothing else."

Sarat also noted that the group's analysis revealed that while the American penal system has gotten better at administering the death penalty, modern society demands more of the process -- that the killing not be more painful than necessary, in particular -- so that the acceptable margin of error is smaller today than it ever has been. As a result, capital punishments gone wrong are as much an issue in the 21st century as they were in the 20th.

Sarat cited the case of Romell Broom in Ohio in September of 2009 as one recent example of a botched execution. Efforts to find a suitable vein through which prison officials could inject a lethal dose of drugs were terminated after more than two hours of trying. Broom repeatedly grimaced in pain throughout the excruciating process and even attempted, at points, to help his executioners find a vein. Finally, Ohio Gov. Ted Strickland put a halt to the execution and ordered a one-week reprieve.

"In my view, no procedure like the one Romell Broom experienced can comport with our constitutional commitment to avoid cruelty in punishment," said Sarat.

What struck student researcher Heather Richard the most was the fact that, in the early 1900s, newspapers didn't just publish articles about executions in vivid, morbid detail; they often made accounts more shocking by deliberately changing the facts. One Associated Press wire piece in 1922, for example, described the electrocution of James Wells on March 10 after 11 unsuccessful attempts. In the original story, Richard noted, the reporter wrote that "fully twenty minutes were consumed in putting him to death" and that the punishment was carried out by an "inexperienced executioner." The Ogden, Utah, Standard-Examiner ran the piece but edited the first phrase to read "few minutes were consumed in putting him to death" and described the executioner as "experienced." This was just one of many instances in which particular papers were loose with the facts, said Richard.

"We all found it fascinating that these editors and reporters took what is already an incredibly sensational event -- a botched execution -- and made it even more sensational by changing the details," she said. "And on top of that, the institution of capital punishment was not really examined or critiqued. It certainly says something about the newspapers and their readers."

Sarat agreed. "How a society punishes, and then talks about it, reveals its true character," he said. "Punishment tells us who we are. The way a society punishes demonstrates its commitment to standards of judgment and justice, its distinctive views of blame and responsibility, its understandings of mercy and forgiveness and its particular ways of responding to evil."

"Sadly," he said, "our attachment to the death penalty reveals an unpleasant, unseemly side of American character."