Die HardestWhy the states are standing by their outdated, messy lethal-injection protocols.
Posted Monday, Nov. 12, 2007, at 7:01 PM ET
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StumbleUponThe reason the states haven't acted is one part strategic and one part inertia. As the appellants' brief in Baze (PDF) points out, most of the states have persistently stood by their protocols with the argument that everyone else is doing it. Kentucky adopted Chapman's cocktail without "any independent or scientific studies" because "other states were doing it … on a regular basis."
As Richard Dieter at the Death Penalty Information Center points out, once the Supreme Court granted certiorari in Baze, the states were forced to defend their protocols en masse, even if they knew them to be flawed. If even one state were to change its procedure now, prisoners in the other states would have a constitutional claim. It's a form of—pardon the pun—prisoner's dilemma; the states backed their way into a rotten system, and now they must insist that it's the greatest, most constitutional system around.
But Dieter points to another, more important reason states aren't racing to embrace new execution methods: "The pitched battle over the death penalty is not a rational one," he says. States that allow capital punishment don't really want to kill a lot more people a lot more efficiently. They want to execute some people, sometimes, and the lethal-injection system—while flawed in substantive ways—was a political solution to a political problem.
The politics of the fight over capital punishment may also explain why, as professor Doug Berman pointed out, the Bush Justice Department seemed to be secretly accepting a moratorium on lethal injections even before the high court agreed to hear Baze. Berman's best hypothesis at the time? "Most folks on both sides of the debate seem to care a lot more about death sentences than they care about whether those sentences result in actual executions."
Deborah Denno, a Fordham University law professor and expert on lethal injection, highlights this same political inertia in a recent article in the Fordham Law Review (PDF). State death-penalty procedures are screwed up because while courts and lawmakers want to be tough on the death penalty, they don't want to dirty their hands with execution. Denno writes that "the entities most responsible for implementing the state's death sentence never want to be associated with the details of it—not the legislatures, not the courts, and until September 27, 2007, not the Supreme Court." Thus, lethal injection policies land in the laps of the states' department of corrections personnel, who have no expertise, and thus depend blindly on the solutions found by other states.
The reason our death-penalty methods are old and rickety is that they were cobbled together on the fly and broadly adopted without care. They are being defended for political and strategic reasons, as opposed to pragmatic ones. And the whole argument is a bad proxy for a larger fight about capital punishment. If carelessness, raw politics, and inertia should be driving policy, the current lethal-injection system is a penalogical grand slam. One shouldn't have to be opposed to the death penalty, be soft on criminals, or be a liberal crybaby to insist that procedures that are hopelessly outdated and medically suspect should be fixed.
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Remarks from the Fray:
If we're going to ban the death penalty, let's ban the death penalty. But if we're not, the debate over the particulars seems rather silly.
The framers obviously didn't intend for the 8th Amendment to be a criticism of the death penalty. Since the states are not purposefully trying to torture death penalty inmates as a means of punishment, pretty much any method should pass muster. Shoot 'em, hang 'em, toss 'em off a speeding train. Whatever. I can't buy into the pretense that death can be made 'humane'.
As a method of backdoor banning the death penalty, it's especially disreputable. Normally when a lawyer tries to game the system to get around the legislature, the judiciary is supposed to slap them down. Only in death penalty law do we seem to get these sort of Brer Rabbit rulings where judges who know perfectly well they'll get crucified for so blatantly standing up to legislative intent try to make an end run around the will of the people.
Contentious debates such as the death penalty belong in the public square - not sequestered in the courts. If you're going to ban the death penalty, fine. If you're going to retain it, fine. Just don't pretend to be concerned about implementing 'humanely' as an excuse to circumvent the law.
--Xando
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And why, exactly, are we so concerned that those who have committed the most horrible crimes suffer a bit before they die? These aren't everyday criminals we are talking about, but sadistic rapists and killers. Why no mention of that? Worse, what we do to animals is of no moment here. We don't strap animals into electric chairs, either, or subject them to firing squads. Does that mean we're treating murderers worse than animals? No. It means we're treating them like murderers.
--Sycamancy
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The state of Texas is likely finding this to be a great time to put a halt on executions, as it needs to reexamine its own processes for killing killers. The Harris County Crime Lab has been in the news regularly for serious problems, and the state is now investigating hundreds of cases handled by the lab, including several in which the accused have already been executed.
It appalls me that anyone may find reason to justify the possibility that my home state has murdered fifteen innocent people. These investigations have already exonerated several accused sex offenders, some of whom have spent decades in Texas prisons. It is my hope that this is the final farewell for the death penalty here.
The best reason to end the death penalty is the fact that the judicial system is a system designed and employed by human beings, and humans are capable of error. We tend to be cynical about the government's ability to do anything right, and when it comes to tort reform, we express outrage when a jury awards multi-million dollar judgments for petty lawsuits. Yet how can we justify giving this egregiously inept government and these preposterous juries the power to kill?
If someone murdered someone I love, I could conceptualize the satisfaction of knowing that murderer will be killed, too. That's my emotional investment in this issue: people want justice, and we want justice that is proportional to the crime. But it seems to me that the side most dependent on emotional appeals in this debate are the supporters of the death penalty. They aren't thinking rationally on this. It's time to end the death penalty once and for all.
--Anse
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Execution is revenge. It's done to make people feel better, to give them the feeling their extracting the maximum "payback" from the criminal, to create the illusion we're doing something about serious crimes, to give us a feeling of safety in the sense that the death penalty provides some extra measure of protection against murderers. It's emotionally satisfying to kill people we see as threatening us.
Personally, I'm not too concerned about the humane-ness aspect of capital punishment. There is no humane way to execute a person, and a few minutes of physical pain at the end doesn't weigh heavily one way or the other.
I oppose the death penalty because I want to extract remorse from murderers. I want them to sit in jail 30 years or so and think about what they did, how it affected the victim and other people, how it wasted the life of the victim and the murderer. I want them to feel sorry they murdered, not just sorry about losing their own lives.
--Arlington
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Many of us in corrections believed that lethal injection was rather barbaric compared to other proven methods of execution such as the gallows, firing squad and electric chair; all of which are swift and less painful when performed properly. Why these proven methods were abandoned is beyond me.
It is unfortunate that lethal injection which was created to give the image of a quiet peaceful and humane death may be the cause for abandoning capital punishment altogether, which in turn will cheapen capital crimes to the level of non-capital violent crimes. Imagine a criminal who was convicted of the non-capital crime of assault and battery with intent to kill, serving the same sentence as a double murderer. In the end, all criminal behavior is reduced to nothing more than deviant behavior.
--Nanjing
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(11/17)