Criminal Justice

Think of It As a Lifectomy

Which execution method causes the least discomfort (to the public)?

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In his recent Supreme Court opinion upholding Kentucky's execution method, Chief Justice John Roberts says the state's lethal injection procedure passes constitutional muster because it does not pose "a substantial risk of serious harm." You might think serious harm would be hard to avoid with a procedure that's designed to take someone's life.

Roberts, of course, is not talking about the harm that inevitably occurs when someone dies; he is talking about the possibility of pain on the way to that final destination. This strange fastidiousness about making murderers as comfortable as possible when we kill them suggests that capital punishment in this country is ultimately doomed.

It's not doomed because it violates the Eighth Amendment's prohibition of "cruel and unusual punishments," contrary to what Justice John Paul Stevens now seems to think. As Justices Antonin Scalia and Clarence Thomas point out in their concurring opinions, a penalty explicitly envisioned by the Constitution (which refers to capital cases and says the government may not take someone's life without due process) can hardly violate the Constitution.

No, capital punishment is doomed because most Americans, including many who ostensibly support it, are not truly at ease with the idea of killing a man in cold blood. On balance, that is probably a good thing.

This discomfort with executions is reflected in what initially seems to be a needlessly complicated lethal injection process. In Kentucky, as in the vast majority of the 36 states with death penalties, condemned prisoners receive three different drugs: sodium thiopental, a barbiturate that would be fatal on its own in a large enough dose, to knock them out; pancuronium bromide to paralyze their muscles; and potassium chloride to stop their hearts.

The Eighth Amendment challenge to this procedure was based on the possibility that a prisoner might not get enough of the barbiturate to be fully unconscious. In that case, he would experience suffocation from the pancuronium bromide and severe pain from the potassium chloride without being able to communicate his suffering.

One solution to this potential problem, recommended by the two Kentucky murderers who brought the case, is to eliminate the pancuronium bromide so that the illusion of unconsciousness won't be mistaken for the real thing. In his opinion, Roberts cites two reasons why a state might nonetheless decide to continue using the paralytic agent.

"First," he writes, "it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death."

It's clear from these justifications that the state is trying to prevent discomfort not in the condemned prisoner (who, after all, is supposed to be unconscious) but in the people who witness the execution and, by extension, the general public. "Preserving the dignity of the procedure" is code for maintaining the illusion that a man the government executes is really just undergoing a medical procedure with a very high risk of fatal complications.

In the ebb and flow of American death penalty fashions, from hanging and firing squad through electrocution and the gas chamber to lethal injection, Roberts sees "an earnest desire to provide for a progressively more humane manner of death." I see an earnest desire to soothe an increasingly squeamish public.

As Fordham University law professor Deborah Denno has noted, the execution methods that are less unpleasant to watch are not necessarily less painful. "To me," she told The New York Times a few months ago, "the firing squad is the most humane and perceived to be the most brutal."

Around the same time, the Chinese government said it planned to switch from executions by gunshot to executions by lethal injection, which "is considered more humane," according to an official of the Supreme People's Court. Should that count as progress?

© Copyright 2008 by Creators Syndicate Inc.

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  1. Even if they could, the government should not have that power.

  2. If executions are not to be used, what do you do with a mass murderer? Should we feed and house for their lifespan those that cannot be in a free society for fear of murder? I’m against it in those cases where there is any question of guilt. But what of Ted Bundy? Maybe employ those methods that they themselves used on their victims? What do you all think?

  3. I’m not sure I buy the Scalia/Thomas argument. Clearly capital punishment is noted in the Constitution and so at the time the Eighth Amendment was not contradictory. But the words “Cruel and Unusual” seem to admit to some evolution in interpretation (yes, I know, heresy) – otherwise we’d still be hanging people. For theft. It’s not impossible for the Constitution to contradict itself philosophically.

  4. I’m against it in those cases where there is any question of guilt.

    Unless they are actually caught on video doing it, unambiguously and with a nice clear well lit shot of their face, this question will always exist.

  5. The state shouldn’t be killing anybody, but if you’re going to do it, it should be firing squad. Cheap, easy, quick, and painless. Maybe a little messy, but that’s life…I mean death.

  6. Given how dangerous second-hand smoke is supposed to be, why don’t we just put them in a cell with a smoker?

  7. People who support the death penalty don’t care whether it is painless or not. They’d be glad to torture criminals to death, and now that the Bushies have opened the torture chamber door a little they may get their wish. The whole debate about getting rid of pain is to ease the consciences of the rest of us.

  8. The older I get the less amazed I am that people use the state to evade moral conflict without knowing it.

  9. “capital punishment is doomed because most Americans, including many who ostensibly support it, are not truly at ease with the idea of killing a man in cold blood.”

    I am truly at ease with executing a convict as long as his guilt is indisputable, and his crime is heinous.

  10. My solution is to offer the doomed a choice: Put him in a room by himself with a loaded pistol and give him half an hour to make peace with himself and take care of business. If he chickens out it’s straight to the guillotine.

  11. The method is more or less irrelevant to me.

    The Constitutionality of it is indisputable to me.

    It comes down to me not trusting these jokers to do anything else right, so why should I trust them to get it right when it really counts and not execute an innocent?

  12. “most Americans… are not truly at ease with the idea of killing a man in cold blood.”

    Well somebody better tell that to the Iraqis because after 1,000,000+ deaths I’d guess their starting to doubt our deeply humanistic christian morals. Or are we only squeamish about American deaths? My guess is, as far as the average American views it, all men are created equal, but only so long as they are Americans, and not black, Mexican, mentally ill, native American, Arab, or any other of them ‘different’ folks.

  13. Really, if capital punishment is supposed to be a deterrent, why not make it as violent and gruesome as possible?

    By contrast, it would seem to me that the least painful way to kill ’em would be to give a sedative with the final meal and flood their cell with carbon monoxide while they sleep. That or straight to the guillotine. Messy, but virtually painless.

  14. Put him in a room by himself with a loaded pistol and give him half an hour to make peace with himself and take care of business.

    Ah, but the more action-hero types will shoot their way out, or pull a Deer Hunter on the guards. You’ve got to consider these things, man.

  15. Put me down for firing squad. It’s got a nice 2nd amendment flair and it requires some level of audience participation.
    We should certainly use it in those cases where the prisoner wants it. (“I’m guilty and I’d rather pay for my crimes now than rot in here”)
    Alternatively, some sort of voluntary gladitorial combat might be good for morale.

  16. I agree with Dan. Why have all these expensive, gruesome methods, when you can just give some one an overdose of sleeping pills?

  17. Until reading that article, I was wondering why lethal injection is used for death sentence. Death penalty is supposed to be a deterrence. So, should the method used for death sentence be as horrible as possible? Also, it seems to me there shouldn’t be any worry about executing innocent people. For one thing, there is always a risk that the wrong person is condemned and once you execute a person there is no way of bringing him or her back. Of course, there are ways you can avoid , i.e. DNA testing. Another reason is that if the innocent person is finally found innocent and released into the society, isn’t there a risk that this innocent person turns into a criminal after living with the most violent elements in prison (I do recognize it is extreme, but hardly impossible)? Now, this has nothing to do with death penalty, but rather the trial. But there is the risk that another criminal has been created by the justice system by accident. So, there might be a case for the death penalty, even though it means executing an innocent (But I don’t think it is common).

    I am quite surprised the Chinese government would change its methods to carry out death sentences. What’s next? Cuba abolishes death penalty?

  18. Said it on another thread: Oppose the death penalty, but if can’t get the voters to go along with that, I’d favor giving the condemned the option of killing themselves with a heavy overdose of the narcotic of their choice, administered by a prison official.

    Not that the WoD lovers would ever go for that.

  19. If I was given the choice of my ticket out, I’d probably request nitrous oxide overdose / asphyxia.

    Unfortunately, I’m sure that some people would still oppose this method on grounds that N2O is a greenhouse gas.

  20. Another reason is that if the innocent person is finally found innocent and released into the society, isn’t there a risk that this innocent person turns into a criminal after living with the most violent elements in prison (I do recognize it is extreme, but hardly impossible)? Now, this has nothing to do with death penalty, but rather the trial. But there is the risk that another criminal has been created by the justice system by accident. So, there might be a case for the death penalty, even though it means executing an innocent

    You sound like you work for the government.

  21. Overall, I guess I’m against capital punishment, however, I’m for it in cases of serial murder. If you’ve got evidence showing that a person is guilty beyond a reasonable doubt of killing not only one person, but two or more persons (at two or more crime scenes), then the likelihood of error goes down to virtually zero.

  22. For what it’s worth, as near as I can tell, abolition of the death penalty in most countries didn’t come until after a long period of death sentences either not being handed down or being commuted when they were. After a while the public wonders why they bother having on the books anymore. But no country I know of when cold turkey and suddenly abolished the DP.

    I think the SCoTUS “cruel and unusual” opinion in the 70s might have done more harm than good, coming, as it did, at a time when the murder rate was going up along with public anxiety about crime in general.

    Up until then the DP was being imposed less and less frequently. The court may very well have prevented it from dying the slow death that it deserved.

  23. im apalled by the idiots who think the death penalty solves anything. “an eye for an eye” shouldnt be our system of justice. instead we should focus on healing the problems int eh community that causes these events in the first place. most people on death row have been subjected to liftimes of racism and poverty and were sentenced by racist juries and judges and all anyone is worried about is how painful execution should be.

  24. “If he chickens out it’s straight to the guillotine.”

    The two most prolific users of the guillotine were France and Nazi Germany. Hence, I don’t think Texas would ever go for it.

  25. Batto

    “You sound like you work for the government.”

    Really? The irony is that I do oppose the death penalty. But I could imagine a politician making the same argument. Hell, if a simple citizen like me that has nothing to do with the government can make that argument (Despite the fact that I find such argument to be appalling and downright defeatist), what politician can’t come to such conclusion? Of course, to say it in public would be a horrible thing to do.

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