Is the Death of Capital Punishment Nigh?

Thanks, Danielle and the entire Co-Op gang, for having me this month. I cannot promise to be the most uplifting blogger, as one of my primary areas of interest is cruel and unusual punishments, but perhaps I can provide some relief with my other interests—torts and law & science. Today, however, I’m starting with capital punishment.

In the wake of the botched Oklahoma execution, several people have asked me whether this will mark the beginning of capital punishment’s demise. The thought behind this sentiment seems to be that the horror of Clayton D. Lockett—the subject of the botched execution—writhing and clenching his teeth after he was injected with midazolam might convince the general public that capital punishment is just gruesome and no longer compatible with our sense of fairness and justice. While some observers might certainly find this to be the case, here in Texas—the death penalty capital—I’ve heard people express frustration that anyone has shown sympathy toward Lockett. “Why isn’t anyone talking about his victim?” they ask. “Why should we care that he suffered a few minutes of pain after what he did?” While I’ve tried to explain that the Supreme Court has drawn the line of constitutionality at offenders suffering from wanton infliction of pain, and that we should care about what happened in Oklahoma because it could possibly be considered unconstitutional, this legal argument seems to find little resonance with these questioners. And this sentiment of frustration doesn’t emanate from just Texans; I’ve heard the same thing from people all over the country. Still, the botched execution in Oklahoma—and other botched executions—have been successful in placing a spotlight on some of the problems with capital punishment today. Most of the recent concerns with executions stem from European countries’ refusal to provide death penalty states with certain drugs that have traditionally been used to carry out lethal injection. This has led to death penalty states turning elsewhere for drugs, such as compounding pharmacies, over which there is very little oversight, or using more readily available drugs, such as the medazoline that was used in Oklahoma. States’ new uses of drugs seem to be shrouded in secrecy or largely untested, leaving questions as to how reliable they are in carrying out executions and how much pain they may be causing in doing so. But do we really know how much pain lethal injection with the traditional three-drug cocktail (sodium thiopental, pancuronium bromide, and potassium chloride) caused offenders? Just because most states used similar lethal injection cocktails does not necessarily mean that they were the most humane way to carry out the punishment. There does not seem to be a realistic way to objectively measure the pain involved in execution. In fact, one of the drugs used in the traditional three-drug cocktail for lethal injection—pancuronium bromide—was employed to mask the body’s struggle as it descends into death; pancuronium bromide is a paralytic that keeps the offender’s body from flailing and twitching involuntarily as the body is put to death. Paralyzing the offender in this way may make the execution more palatable for observers to watch. It may also mask any errors in sedating the offender before he is killed, as was argued in Baze v. Rees.

Taking a step back, the Supreme Court has never found a particular method of execution unconstitutional. Although the Court has been continuously chipping away at the death penalty, it has done this from the directions of scrutinizing the classes of offenders that may be executed, limiting which crimes may be punished with death, and examining the procedures necessary to sentence an offender to death. In prohibiting capital punishment in some of these circumstances, the Court has looked primarily at (1) objective indicia of a consensus against a particular punishment, and (2) the Court’s own “independent judgment.”

With respect to the first consideration—the “objective indicia”—thirty-two states (plus the federal government and U.S. military) have retained the death penalty. While this does not seem to suggest that a consensus has been formed against the punishment in the United States, the Supreme Court has found such a consensus on less evidence. In Graham v. Florida, for example, the Supreme Court found that a consensus existed against imposing a sentencing of life without the possibility of parole on juvenile non-homicide offenders despite the fact that thirty-nine jurisdictions permitted the punishment for that crime. In that case, the Court focused on the fact that the punishment was relatively rarely imposed in those jurisdictions. In other cases, the Court has said that the “consistency of the direction of change” makes a difference. In Atkins v. Virginia, for example, the Court found it telling that sixteen jurisdictions had moved to prohibit executing “mentally retarded” offenders in the decade or so before Atkins was decided. In comparison, six jurisdictions have abolished capital punishment within the last eight years.

With respect to the Court’s second indicator of the constitutionality of a punishment—its own independent judgment—the Court has primarily looked to the penological purposes of punishment. This is a somewhat unpredictable and malleable inquiry, however, and the Court has also looked to factors as varied as the reliability of the evidence presented in the trial court and the risk of wrongful execution.

One distinguishing characteristic of capital punishment more generally, though, is its enshrinement in the text of the Constitution. It’s mentioned no less that four times, by reference to capital crimes and depriving someone of his life. The Supreme Court has adopted an evolving interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but it seems that the Court could find this textual aspect of the Constitution a difficult hurdle to overcome.

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3 Responses

  1. Brett Bellmore says:

    “While this does not seem to suggest that a consensus has been formed against the punishment in the United States, the Supreme Court has found such a consensus on less evidence.”

    Granted, the Court is perfectly capable of ginning up a phony “consensus”, even when the actual consensus runs the other way. Any evidence the majority want to play that game in the case of the death penalty?

  2. Botched Executions Caused by Trouble-Prone Injections
    May Lead to De Facto Bans on Capital Punishment

    Clayton Lockett, whose badly botched execution shocked the world and led to postponement of another execution, is reportedly about to become the poster boy for banning capital punishment, not for moral reasons or because innocent people may be put to death, but rather because executions allegedly are inherently subject to horrendous failures.

    Such campaigns may well be effective so long as society insists that executions must be spectacles during which murderers are forcefully killed, rather than simply allowed to die quietly, says public interest law professor John Banzhaf, who thinks he has a simple solution to the main problem of botched executions, both generally and as arguments against capital punishment.

    Although we have moved away from executions which were supposed to be horrible to deter wrongdoers – typified by burning at the stake, boiling in oil, or drawing and quartering – to many newer methods which were supposed to be more humane like hanging, the firing squad, the electric chair, and now lethal injections, the common element seems to be a desire for witnesses to be able to see the condemned killed by society for his crimes, rather than simply his demise.

    But by getting beyond the need to make executions a spectacle, and using a well-tested painless method which has been used by thousands to achieve death with dignity, it’s very easy to deflect this new argument, and allow executions to continue in states where the voters support them.

    As anti-death penalty organizations have well documented, most of the recent botched executions occur because the drugs are injected rather than simply swallowed, with resulting problems including finding a suitable vein, positioning the needle, making sure the catheter is properly located, assuring that it doesn’t come out, using a syringe, tubing which crimps or clogs, etc.

    These problems are compounded by the refusal of most medical professionals to participate in executions, pressure on manufacturers of injectable drugs, as well as seizures by the federal government of injectable drugs which can be used in executions.

    The simple solution, suggests Banzhaf, is to do what death with dignity books and web sites have been recommending for years, and what is now recommended on various on-line guides for physicians in states like Washington and Oregon which have “Death With Dignity” laws: using a small number of barbiturate pills to initially cause sleep leading to unconsciousness, and then to a very calm and painless death.

    Since most of the concerns of using drugs for capital punishment involve problems with injecting the drug, an obvious alternative for possibly meeting constitutional muster and avoiding many other problems would be for states to simply use pills rather than injections to administer drugs such as barbiturates whose lethal properties are well known and very clearly established.

    “Providing a condemned man with barbiturate pills to cause a quick and painless death does not require any trained (much less medical) personnel, and could avoid the many medical problems with injections, as well as restrictions and expiration dates on injectable drugs,” suggests Banzhaf. “If it’s OK for the elderly seeking death with dignity, it should be good enough for condemned murderers,” he argues.

    If the prisoner refuses to take the pills, or only pretends to swallow them, he can hardly complain later about unconstitutional “cruel and unusual punishment” if the state thereafter has to use lethal injections. To paraphrase an old legal saying, he had the key to his own freedom from pain, says Banzhaf.

    Since only a few grams of certain barbiturates are necessary to cause death, and pills may be much harder for drug companies to restrict than liquid injectable drugs, the amount necessary to cause a quick and painless death might be administered in several easy-to-swallow pills.

    Concerns that the convict would fill his stomach with food to slow the absorption of the ingested drug aren’t valid because condemned prisoners are usually kept under constant watch at least 24 hours before the time of execution, and because any such ploy would likewise make the condemned himself responsible for any pain he might suffer if a subsequent drug-injection execution became necessary.

    Likewise, since oral administration takes somewhat longer for the drugs to reach the system than injections, this method of capital punishment is much less likely to trigger the sudden reactions lethal injections have sometimes been said to cause.

    In short, using well-known, more easily available pills rather than injections for executions might mute many constitutional objections, avoid the major problems with lethal injections highlighted by death penalty opponents, eliminate the need for medically trained personnel (who often refuse on ethical and/or professional grounds to participate in executions), and have many other advantages, suggests Banzhaf, who has not taken a public position on capital punishment.

  3. Brett Bellmore says:

    If you’re looking for a technical solution, you can’t get more effective or simpler than just plain nitrogen gas. It can cause virtually instantaneous loss of consciousness, followed by a painless death in under a minute. And it’s not like the Justice department can seize all the nitrogen gas in the country to interfere with it’s use.

    The problem, of course, is any change in execution procedures provides an opening for lawfare. Death penalty opponents don’t WANT executions to be painless and reliable. And they’re working hard to make sure they aren’t.