Before the state of Oklahoma put John Marion Grant through the 12-minute ordeal of convulsions, vomiting, and heaving that eventually concluded with the 60-year-old’s death, it gave him a choice: How would he like to die?
There were a number of options. There was pentobarbital, the barbiturate most recently made infamous by the Trump administration’s last-minute federal-execution spree; sodium thiopental, a near-extinct anesthetic once used in medicine and, prompting its eradication from the market, lethal injections; compounded versions—meaning iterations made without FDA approval—of either drug; the state’s preference, a three-drug cocktail starting with midazolam, a benzodiazepine used for sedation and seizure control and the occasional overtly inhumane execution; or a firing squad, the good old-fashioned kind of killing in which the killers at least pay their prey the respect of no pretense.
Since the Supreme Court’s strange and consequential opinion in the 2015 case of Glossip v. Gross, in which Justice Samuel Alito wrote that “because capital punishment is constitutional, there must be a constitutional means of carrying it out,” death-row prisoners who challenge their states’ methods of execution have been tasked with producing a suitable alternative. How about old age? their attorneys often volunteer, sardonically. But when states demand that complainants select a “known and available alternative method of execution” that presents a substantially lower risk of severe pain than the method on offer, they mean one the state, rather than nature, can inflict.
Death is a difficult thing to ponder under ordinary circumstances. Planning one’s own death under duress complicates matters further. For one thing, as Grant’s attorneys argued in a motion filed three days before his scheduled execution date, forcing him to select the means by which the state would put him to death would violate his sincerely held religious objection to suicide. The Tenth Circuit Court of Appeals was unmoved. And so Grant did what his conscience compelled him to do: He refused to choose.
It was a fatal decision. If Grant had told Oklahoma how to kill him, he would still be alive.
Listen to “A Friend in the Execution Room,” an episode of The Experiment.
This fresh madness is only the latest layer of lunacy heaped atop the mountain of nonsense and tortured reasoning that constitutes the legal edifice of capital punishment in the United States. The Eighth Amendment, which theoretically bars cruel and unusual punishment, ought to—at least, per the interpretation of the Supreme Court—move the country ever further toward humane and civilized justice. Yet challenges to methods of execution that have produced clearly cruel deaths—such as that of John Grant (and others before him, including Clayton Lockett, also of Oklahoma)—have resulted in a freakishly sadistic execution schema in which people aren’t just killed by the state but are also recruited as participants in their own demise, in clear violation of their religious principles and despite the obvious psychological terror such a regime inflicts.
“The reason it’s so offensive is that being executed by the state is the ultimate involuntary act,” Marc Bookman, a co-founder and the executive director of the Atlantic Center for Capital Representation, told me. “What could be less voluntary? They give you the whole Camus business about when you’re going to be executed and whatnot. And then the state tasks you with coming up with a means of execution that’s constitutional. And what that does is it converts an involuntary act into a collaboration between you and the people who’re trying to kill you.”
Moreover, Oklahoma was able to move forward with Grant’s execution only because he hadn’t submitted an affirmative choice of execution method. People on death row who challenged the state’s protocol (a medley of midazolam, vecuronium bromide, and potassium chloride) and did select an alternative method remain plaintiffs on an active lawsuit headed to trial early next year; until that litigation concludes, their executions cannot be carried out.
Further, the options available aren’t necessarily as available as they seem. While some states and the federal government have acquired pentobarbital in secret to protect their suppliers from the protests of anti-capital-punishment activists, other states have yet to set up such clandestine sourcing. Oklahoma has been unable to secure a stock of pentobarbital since early 2014. The following year, evidently strapped for lethal drugs, the state mistakenly used a chemical manufactured to de-ice airplane wings in the execution of Charles Warner. And while death by firing squad remains on the books in Oklahoma, the state has not executed a single prisoner thusly since it began documenting its executions in 1915.
Which left, for Grant, the Oklahoma protocol—beginning with midazolam.
Theoretically, the first drug in the sequence ought to prevent the person being killed from experiencing the pain of their own death. Midazolam works to reduce electrical activity in the brain, Joel Zivot, an associate professor of anesthesiology and surgery at the Emory School of Medicine and a senior fellow in Emory’s Center for Ethics, told me. It can promote sleep, decrease anxiety and restlessness, or, in certain cases, stop persistent seizures. But it is not a pain reliever, and it does not necessarily produce a comatose-like loss of consciousness.
To inject midazolam, Zivot explained, you first need to dissolve it in an acid; to render enough to fully and deeply sedate an adult man, you need to introduce a very large quantity of hydrochloric acid into the bloodstream very quickly, which perhaps accounts for the evident agony of Grant’s final moments. Having reviewed the autopsies of many executed people, Zivot believes that lethal injection very often produces similarly painful results, though sometimes the people happen to be paralyzed by other drugs first, and are thus unable to communicate what they’re going through. “This is not unusual in terms of what is happening beneath the skin,” he said. “It’s just unusual in that we could see it this time.”
Others remain on Oklahoma’s death row who are eligible for execution. The state very well may put them to death the same way it put Grant to death, and it may do so in spite of the furor sparked by the agony of his demise—or because of it. In the pursuit of killing its own citizens, this country has wrenched from its constitutional protection against cruelty a regime more bestial than one invented with total indifference to the concept; the constitutionally sacred right to religious liberty, too, has already been sacrificed on this pyre.
All this to put a 60-year-old man to death. Oklahoma, sans one more soul, likely sleeps no sounder, and we are all a little less human. Zivot scoffed when I lamented that we kill people like worn-out working dogs in this country.
“Putting down animals is done better,” he said. “Much better.”