Dr Jay Chapman, the pathologist who invented the lethal injection that has been the dominant execution protocol in the US for 40 years, says he has growing doubts about the death penalty in the wake of mounting evidence of wrongful convictions.
Chapman, 75, said that he had revised his view of capital punishment despite having been the architect of the lethal injection in 1977. “I am ambivalent about the death penalty – there have been so many incidents of prosecutorial misconduct, or DNA testing that has proved a prisoner’s innocence. It’s problematic.”
The forensic pathologist, who still practises in Sonoma County, California, was speaking to the Guardian on the eve of a landmark hearing at the US supreme court in Washington on Wednesday. The case will see the court’s nine justices come together for the first time since 2008 to consider whether the present-day practice of executions meets the constitutional prohibition on cruel and unusual treatment.
In 2008, in Baze v Rees, the justices ruled that the triple lethal injection – the protocol devised by Chapman – was constitutional. But since then the widely deployed three-ingredient cocktail of anaesthetic, muscle relaxant and potassium to stop the prisoner’s heart has been thrown into disarray as a result of a European-led boycott of medical sales to US corrections departments.
As supplies of the lethal drugs have run out, death penalty states have turned to increasingly maverick alternatives to fill the gap. Some have purchased medicines unlawfully from abroad, others have ordered them from scarcely regulated compounding pharmacies, and many have turned to pharmaceuticals previously unused in death chambers.
Wednesday’s supreme court hearing will focus on one such drug, midazolam, which has been used in a string of recent executions that caused public uproar as a result of their botched nature or prolonged duration. In the most notorious such incident, the execution of Clayton Lockett in April last year, the prisoner was witnessed to writhe and groan on the gurney and was pronounced dead after 43 minutes.
The country’s highest court will consider in oral arguments whether a state may use midazolam in executions in the face of criticism that the drug was an unreliable way of producing deep unconsciousness in a condemned prisoner. Justice Sonia Sotomayor, who has led the push for a review, has said that death row inmates had “committed horrific crimes, and should be punished. But the eighth amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.”
In his Guardian interview, Chapman said midazolam “would not be my drug of choice”. He said that its properties were such that it could be taken in relatively large doses before reaching lethal levels.
In other words, it was paradoxically precisely because midazolam is considered relatively safe in medical situations that it is regarded as dangerous as a lethal injection drug. Midazolam could expose prisoners to very long executions or to the risk of pain if they were not put into a coma-like condition.
But Chapman discounted as specious the argument that has been raised by some lawyers representing death row inmates that midazolam was being applied experimentally in executions. “People talk about the drug not being ‘tested’. What does that mean? Should we be lining people up against the wall and testing them with different lethal drugs?”
Chapman’s own association with America’s modern way of executions came about almost by chance – as he is keen to emphasise, never having wanted to be labelled as the “father of the lethal injection”. It was 1977, and Gary Gilmore had just volunteered to be the first person to be executed in America after a lengthy moratorium imposed by the US supreme court.
Gilmore’s execution sparked a debate that fanned out to other states including Oklahoma where Chapman was asked by a legislator to come up with a more humane method than either the firing squad – which Gilmore had opted for – or the electric chair used previously in Oklahoma. “We had discussed what happened to Gary Gilmore,” Chapman recalls. “At that time we put animals to death more humanely than we did human beings – so the idea of using medical drugs seemed a much better alternative.”
There was no magic formula to solving this problem, Chapman said. “We simply took the standard set for anaesthesia in surgical procedures, then all we did was take the amounts of drugs to lethal levels recommended by a toxicologist.”
He finds it bizarre that his name has become linked to the lethal injection. “This wasn’t my field, and it wasn’t my purpose in life – I’m a forensic pathologist and my main purpose was to set up a medical examiner’s system for Oklahoma, which is what I did.”
But Chapman hadn’t counted on the power of being the first state to invent and apply the new lethal injection protocol. “I had no idea, I was so naive. I was young – I had no idea that it would spread so quickly across the states. All of a sudden it was all over the place.”
In the four decades since he composed the lethal injection protocol he’s been increasingly distressed by a succession of botched procedures. “Unconscionable things have occurred, like the needle being applied in the wrong direction or drugs being injected not into the vein but into tissue,” he said.
Chapman believes these gruesome incidents have highlighted problems not with the lethal injection itself, but with “the people administering it who lack the skills they need.”
His most serious qualms about the death penalty in America relate not to the idea of using drugs to kill prisoners but evidence that some people awaiting execution might be innocent. “I’ve done autopsies for 50 years and I know what people are capable of doing to others. There are some criminals who have no redeeming features and who will never be rehabilitated – in those cases I would support the death penalty. But I’ve also seen the misconduct that can occur, and the problem is: how do you sort out one from the other?”