With the remarkably sudden surge in support for gay marriage and the legalization of marijuana – both fringe issues as recently as 10 or 15 years ago but now favored by a majority of the American people – this first decade and a half of the 21st century may well be flagged by historians as a time of radical social change, even if not accompanied by the type of violence that marked social upheaval in the 1960’s.
Is it possible that the abolition of the death penalty will continue the pattern? A spate of recently botched executions suggests the time and climate may be ripe for it.
You may remember back in April, Oklahoma prison authorities managed to botch an execution so badly that, as the Washington Post put it, the death penalty debate was reignited. Clayton Lockett died 43 minutes after what was supposed to be a lethal injection from a heart attack. While it was ultimately lethal, that 43 minutes created an existential problem for states administering the death penalty by novel pharmaceutical methods. Various other states even started looking at bringing back the electric chair.
The Oklahoma incident, which should be viewed as a travesty of justice no matter your position on the death penalty, was not the first problem with the drug cocktail used for executions. Back in January, the state of Ohio tried to execute Dennis McGuire using the same combination and failed to do so in a timely fashion. McGuire took almost 20 minutes to die after being injected with midazolam, a sedative now favored by states for their lethal drug cocktails. Before that, Florida executed William Happ with the new mixture and found that “Happ remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula.”
According to the Associated Press, “Most of the 33 states with the death penalty had long used sodium thiopental as the first of a three-drug combination administered during lethal injections. But that drug also became unavailable when its European supplier acknowledged pressure from death penalty opponents and stopped selling it for executions.” After sodium thiopental was banned, states tried sourcing many different drugs to execute people, and were greeted by the manufacturers of those drugs with a resounding rebuke. These drug companies did not want them used for such a purpose. The states then tried these new mixtures.
Certainly, prisoners who are waiting on the government to relieve them of their lives should not be subjected to the prospect of unknown lengths of what can fairly be called torture. Joseph Rudolph Wood was just such a person. He was convicted of murdering his girlfriend and her father in 1989. The state of Arizona was planning to execute him this week after he had exhausted his other state and federal appeals. And they were planning to do so by secret means.
The state refused to reveal to Mr. Wood and his defense team the method of execution. The Ninth Circuit ruled on Monday that the stay of execution would continue unless Arizona revealed the information sought. Arizona rushed off an appeal to the Supreme Court in hopes of executing Wood ASAP. The appeal failed, and Wood was put to death on Wednesday in an ordeal that lasted almost two hours.
In light of that latest lethal injection travesty, worthy of note is the memorable opinion penned by Federal Appeals Court Judge and Conservative/Libertarian legal celebrity Alex Kozinski. He dissented from the majority appellate opinion, writing that he would have allowed the execution to proceed. What is remarkable, however, is his rationalization and the language that he used to present it. Kosinski writes:
Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure.
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments.
But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply.
Judge Kozinski is right – putting someone to death is a brutal business, and the lethal injection has allowed people to pretend otherwise. And this issue is picking up steam for a number of reasons. In California, executions have now become impossible, at least for a while, as another federal judge ruled that the state’s death penalty system is itself unconstitutional.
In vacating the death sentence of Ernest Dewayne Jones, a federal judge and Bush 43 appointee ruled that because California’s system of dealing with death penalty cases was so dysfunctional, it violated the constitutional rights of the convicted, writing: “When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system” His opinion also made clear that delays were by and large, not the result of defendants or their attorneys, but rather systemic delays and irrational application of the death penalty by the state.
It does not always take something as flagrant as an innocent man having been executed to serve as the impetus for seismic legal and cultural change – and make no mistake, the dissolution of the death penalty would be both. The inhumane treatment of doomed men may be sufficient to raise afresh the issues long debated about the death penalty. It seems a reasonable conclusion that a society unwilling to tell someone who they can marry will ultimately oppose sending a man to his death, no matter the crime.
No one has ever been able to prove that the death penalty is in fact a deterrent. The argument that it costs taxpayers more to imprison a person for life than to execute him has long since been discredited. But the fight over the existence of the death penalty has never been a fair one, because the public becomes so overwhelmed by the heinous crimes of the perpetrator that the response of the state has always been secondary. Such is the case with all debates driven strictly by emotion, an element the law – including but not limited to the 8th amendment in the Bill of Rights prohibiting cruel and unusual punishment – is designed to remedy.
It may also be that Americans are simply getting fed up with the ever-increasing power of the state. Even though death penalty statutes are different in each state, the argument goes that a government that is both powerful and determined enough to target political enemies with the most powerful agency of the state and incompetent enough to botch the rollout of a website regulating 15% of the nation’s economy can hardly be trusted to determine the final fate of any individual.
Fact is, no less than 144 death row inmates have been exonerated. Is it reasonable to assume that’s it, that every innocent man ticketed for execution has been identified? Of course not.
This is an issue, like the drug war, in which conservatives should apply consistency in their abiding distrust of the power, scope and efficacy of government. Spending the rest of your life in a maximum security prison is hardly the equivalent of a get-out-of-jail-free card, but putting any person to death represents the ultimate application of government power. And unlike virtually every other act by the state, it is entirely irreversible.
