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On 21 May, Tony Carruthers had an experience that few others have had. He was taken to the execution chamber, where the state of Tennessee began the process of putting him to death, but it failed to finish what it started.
Carruthers was not killed and he lived to tell about it. He became the ninth person to survive a failed execution in the last 80 years.
Botched executions are by now quite common in the United States. But on most of those occasions, the people whose executions go awry end up dead.
But not Tony Carruthers.
He was convicted of the 1994 kidnappings and murders of Marcellos Anderson; Delois Anderson, his mother; and Frederick Tucker. But the case against Carruthers was flawed from the start.
The state did not provide fingerprints or any other physical evidence linking Carruthers to the crime. It did have a DNA sample that Carruthers later contended would not, if tested, be a match with him. That meant that the decisive evidence against him at trial was provided by witnesses who testified they had heard him confess, one of whom was a jailhouse informant.
And as if that was not enough, Carruthers had to represent himself in his trial, after he received what he considered inadequate representation by court-appointed lawyers. According to the lawyers now representing him, “paranoia and delusions” kept Carruthers from cooperating with his court-appointed counsel. But, as the AP puts it, the judge “viewed the behavior as willful”. The Tennessee supreme court agreed that Carruthers was responsible for his situation.
Even after those rulings, the problems in Carruthers’ case should have been enough to give officials in Tennessee pause. About 130,000 people signed a petition asking Bill Lee, the governor, to do just that so that the DNA could be tested, or to exercise his clemency power. Lee was unmoved.
Tennessee went ahead with his execution anyway but couldn’t finish what it started. After the failure, Lee gave Carruthers a one-year reprieve.
That is not enough. Tennessee should not get another chance to execute him. Not next year. Not ever.
Executions are always cruel. But a second execution attempt would be the kind of cruelty that no decent society should countenance. Moreover, it would violate the constitutional prohibition of double jeopardy, which forbids trying or punishing someone twice for the same crime.
Before saying more about that, let’s look at what happened to Carruthers.
His lawyer, Maria DeLiberato, of the American Civil Liberties Union, was with her client as the state started the execution process. It is a good thing she was.
Under Tennessee law, media witnesses are not allowed to see the process for securing the IV lines needed to deliver lethal injection drugs. The AP notes that in Tennessee, “blinds between the witness room and the execution chamber are kept closed until the IV insertion team has left. On Thursday, media witnesses sat in a dark room for over an hour, but the blinds were never raised.”
They did, however, hear Carruthers groaning as they waited in the adjoining room.
As the Tennessee department of corrections told USA Today, after the execution team established “the primary IV line”, it “‘could not find another suitable vein’ for a backup line, which is required under the state’s lethal injection protocol”. DeLiberato told reporters she saw Carruthers “wincing and groaning” as the execution team tried to find a vein. DeLiberato called it “horrible” to witness.
She said she had seen several puncture wounds: “There was a lot of blood.”
The state department of corrections said that after failing to find a useable vein in the usual places, the execution team tried to secure a central line “pursuant to the protocol but the procedure was unsuccessful”. After that, “the execution was … called off”.
Carruthers was then returned to a holding cell.
America’s recent grim history of failed executions began when the state of Louisiana failed in its effort to electrocute a young Black man named Wille Francis in the 1940s. What to do with him? Louisiana’s answer: try again.
But Francis, with the aid of a local attorney, had a different idea. He sued, claiming a second execution attempt would be unconstitutional.
He lost and the US supreme court used his case to lay down a marker that continues to give states great leeway even today. It allows them to try again if they fail in a first execution attempt.
Writing for the court, Justice Stanley Reed explained that “even the fact that petitioner has already been subjected to a current of electricity does not make his subsequent execution any more cruel in the constitutional sense than any other execution … The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain, nor any unnecessary pain involved in the proposed execution.”
Francis was, as Reed put it in a supreme understatement, the “unfortunate victim of this accident”.
Following Francis, there have been other unfortunate victims of failed execution, most of them since 2009, all of them occurring in Alabama, Idaho, Ohio – and now Tennessee. All of those involved lethal injections which could not be completed due to problems like those that occurred in Carruthers’ case.
Citing the supreme court’s decision in the Francis case, other courts have turned a blind eye to the suffering of those whose executions fail and to the torment of having to contemplate another trip to the death chamber.
One court even went as far as to say that an execution by lethal injection does not begin until the lethal drugs start to flow. Having needles stuck repeatedly into various parts of the body or having to endure the painful process associated with trying to access a central vein is not a part of the punishment.
I doubt that Carruthers or others in the execution survivors’ club, only one other of whom, Thomas Creech, is still alive, would agree.
As I and my collaborators note in our study of the people whose executions failed: “Some of them endured a second execution; others escaped that fate only to die in prison; one agreed never to disclose the details of his attempted execution in exchange for the State’s promise not to attempt execution again by the same method; and Creech’s fate hangs in the balance.”
Now so does Carruthers’.
But there should be no question of what to do with him. As Bernard Harcourt, who represented Doyle Lee Hamm, another execution survivor, put it: “The state had its bite at the apple.”
He is right. The government should not get a do-over.
The closest any judge has come to embracing that view was Justice Harold Burton, who dissented in the Francis case. As he explained: “Although the failure of the first attempt, in the present case was unintended, the reapplication of the electric current will be intentional. How many deliberate and intentional reapplications of electric current does it take to produce a cruel, unusual, and unconstitutional punishment?”
His answer: “The present case demonstrates that, today, two separated applications are sufficiently ‘cruel and unusual’ to be prohibited.” When the state seeks to execute someone, they have a duty “to make sure that there … (is) no failure”.
Let’s hope that Burton’s view prevails in Carruthers’ case and that we can all be spared the horror of another deliberate effort to end his life.
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Austin Sarat, associate dean of the faculty and William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is the author of Gruesome Spectacles: Botched Executions and America’s Death Penalty
