The Atlanta Journal-Constitution
Choosing to get the chair
Scared by horror stories involving lethal injection, some death row inmates are picking electrocution instead.
‘When everything works perfectly, it’s about 14 minutes of pain and horror. Then (death row inmates) look at electrocution, and how long does it take?’
Stephen Kissinger, an assistant federal community defender in Tennessee who has represented death row inmates. Tennessee gives inmates condemned to death before 1999 two choices for how they will die: lethal injection or the electric chair.
Nicholas Sutton, like other death row inmates in Tennessee, had a choice in how the state would end his life. The default, as set by state law, would be a series of injections, one to sedate him, followed by others that would paralyze him and stop his heart.
Yet Sutton, like four other inmates executed before him in Tennessee since 2018, chose the state’s other option: two cycles of
1,750 volts of electricity.
Nationally, the electric chair is a method of the past; no other state has used it since 2013. But inmate advocates and lawyers say the condemned men in Tennessee are choosing electrocution because they fear being frozen in place and feeling intense discomfort while drugs work to kill them.
In Ohio, a federal judge recently wrote that part of the state’s lethal injection protocol is akin to waterboarding, and botched procedures in other states have left men writhing in agony.
“When everything works perfectly, it’s about 14 minutes of pain and horror,” said Stephen Kissinger, an assistant federal community defender who has represented Sutton and other death row inmates. “Then they look at electrocution, and how long does it take?”
Tennessee joined other states more than two decades ago in turning to lethal injection as the primary method for executions, with lawmakers viewing it as a visibly calmer and less violent alternative to electrocution.
But that view has been challenged in recent years, as errors and problematic executions, including one in Oklahoma in 2014 in which an inmate regained consciousness, have gained widespread notice. Many pharmaceutical companies have also made it more difficult for states to acquire the proper drugs, not wanting them associated with ending lives.
Death penalty on the decline
The death penalty, in general, has been on the decline in the United States, with seven states carrying out 22 executions in 2019, the second-lowest number since 1991. Last year, New Hampshire became the 21st state, and the last in New England, to abandon capital punishment. And a year ago, Ohio paused executions while state officials considered a new lethal injection protocol after the drugs could not be obtained and a federal judge found that the method could cause an inmate “severe pain and needless suffering.”
“Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment,” Gov. Mike DeWine, a Republican, said last year.
But other states have doubled down. This month, state officials in Oklahoma announced that lethal injection deaths would resume after a five-year hiatus and a series of botched executions.
In Tennessee, the protocol calls for the injection of three drugs: midazolam, a sedative; vecuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart. Dorinda Carter, a spokeswoman for the State Department of Correction, noted that “lethal injection has repeatedly been upheld as constitutional in Tennessee.” The state’s Republican governor, Bill Lee, has also maintained his support of the death penalty, saying in an interview with The Associated Press published in December that he believes the punishment remains “appropriate for those most heinous of crimes.”
Some medical experts contend that lethal injection tests the constitutional limits on cruel punishment. Joel Zivot, an associate professor of anesthesiology and surgery at Emory University, said the sedative used in the three-drug cocktail does not inure the inmates to pain and that the paralytic masks the torment they are enduring.
“You just don’t see much,” Zivot said. “You see a person lying there.” He added that it creates an impression that the inmates are simply “falling asleep and dying.” Instead, he said, the drugs can cause their lungs to fill with fluid, asphyxiating them, and makes them feel like they are burning.
Zivot, who has evaluated Sutton, along with other inmates on Tennessee’s death row, said the inmates are often in poor health, with a litany of medical problems, including diabetes, hypertension, high cholesterol and pulmonary ailments.
“With respect to the rightness or wrongness, I’m agnostic,” Zivot said of capital punishment. But, he added, “You may say, who cares? It’s just an inmate who has killed someone, and we owe them nothing. Some people may think that, but the constitution says otherwise.”
Tennessee inmates chose electrocution
Nearly four decades had passed without an inmate being put to death in Tennessee when state lawmakers, in 1998, added lethal injection as a method of execution. Two years later, it became the state’s primary method. But according to state law, inmates who were condemned to death before 1999 are allowed to choose between lethal injection and electrocution. Of the 52 inmates on Tennessee’s death row, more than half received their sentences before the cutoff, according to data from the state’s Department of Correction.
In 2007, Daryl Keith Holton, who confessed to killing four children, including three of his own, was the first inmate to be executed by electrocution in the state since 1960. Since 2018, four inmates have been put to death by the electric chair.
The most recent before last week was Lee Hall, who was executed in December for killing his former girlfriend, Traci Crozier, by dousing her in gasoline and setting her on fire. A helmet with a sponge soaked in saline solution was put on his head, and a dark shroud was attached to it.
“I think people can learn forgiveness and love and make the world a better place,” Hall, 53, said before being struck by a burst of electricity, which caused steam or smoke to emanate from his head, witnesses told the news media.
Afterward, Stacie Wooten, the victim’s sister, said Hall’s death had brought a measure of consolation. “Our family’s peace can begin, but another family’s hell has to begin,” she told reporters, according to The Tennessean newspaper in Nashville.
Sutton, 58, was sentenced to death for his involvement in the killing of Carl Estep, another inmate in the prison where Sutton, who was 23 at the time, was incarcerated. He had been convicted of first-degree murder for knocking unconscious his grandmother, who had raised him, and throwing her into a river. He received two other life sentences after he confessed to killing a pair of men, John Large and Charles Almon.
In an appeal for clemency, Sutton’s lawyers depicted his transformation over more than 35 years in prison. The mother of a fellow inmate who had untreated multiple sclerosis said Sutton had comforted her son and even carried him, they said. Corrections officers also said they “owed their lives” to him for rescuing them from being attacked by other inmates.
“He placed my safety and well-being above his own,” one corrections official, Tony Eden, wrote in an op-ed published in The Tennessean, where he also called Sutton the “most rehabilitated inmate I have ever known.”
“Simply put,” he added, “the prison will be safer with Sutton serving life than it would be if he is executed.”
Sutton also sought to put off his execution by arguing, among other things, that he had been improperly shackled in front of jurors while on trial. But the Tennessee Supreme Court rejected his claims, saying in a ruling that Sutton “failed to prove a likelihood of success on the merits of the litigation in both matters.”
Before his execution this past Thursday night, Sutton was moved two days earlier into death watch at the Riverbend Maximum Security Institution, a facility in Nashville situated in a crook of the Cumberland River that houses Tennessee’s death row for men.
He was placed under 24-hour observation in a cell adjoining the execution chamber, allowed to have his toiletries, 12 sheets of stationery, three stamped envelopes and a pencil that he had to return to a correctional officer whenever he isn’t using it. There, he awaited the governor’s decision, which came Wednesday, on whether to carry out his execution.
“After careful consideration of Nicholas Sutton’s request for clemency and a thorough review of the case,” Lee said in a statement, “I am upholding the sentence of the State of Tennessee and will not be intervening.”