Monday, May 8, 2017

Time for the Death Penalty to Die

America's complicated execution methods bespeak a bad conscience
From: 3 Quarks Daily   by Emrys Westacott

Last month the world witnessed a morally repulsive spectacle in Arkansas. The state sought to execute eight men over eleven days, and succeeded in executing four of them, including two within an hour of each other. The reason for the rush to complete the executions before the end of April was that the state's supply of a certain drug used in the process was about to pass its "best used by" date, and the authorities were concerned on two counts: that they wouldn't be able to acquire further supplies; and that once the stocks they had were past their expiration date, there might be legal grounds either for stopping the executions or for suing the state should the executions not proceed smoothly.

Arkansas' preferred method of execution is lethal injection. In the recent cases this involved administering three drugs in succession: 
  1. Midazolam: a sedative that is supposed to render the condemned person unconscious
  2. Pancuromium bromide, which paralyses them
  3. Potassium chloride, which stops the heart
The use of midazolam is controversial. It is a benzodiazepine, a similar sort of drug to valium. Unlike the barbiturates that are usually used as anesthetics in surgery, it is not guaranteed to render a person completely unconscious. It is therefore possible that the subsequent injections could cause severe pain, and this sometimes appears to have happened. In 2014, the execution in Oklahoma of Clayton Lockett by lethal injection took 43 minutes; the condemned man writhed and groaned on the gurney, went into convulsions and eventually died of a heart attack. In Ohio that same year, Denis McGuire appeared to be suffering several minutes into the procedure. In Arkansas last month, witnesses reported that Kenneth Williams, the last of the four to be executed, groaned and suffered convulsions.

People often ask why these problems arise given that we routinely anaesthetize patients for surgery and euthanize animals painlessly. The main reason is that the companies that manufacture drugs like sodium thiopental, pentobarbital or propofol, which are commonly used for such purposes, will not provide these drugs to anyone who might use them for the purpose of capital punishment. Some of this reluctance might stem from the moral values of the main shareholders; but to a large extent it is dictated by legal and commercial considerations. The drugs in question are largely manufactured in Europe, and EU regulations prohibit the export of drugs that might be used in executions. Rather than risk having sales to the US banned, companies choose not to supply the drugs to prisons.

A deeper question, though, is why the US makes executions so complicated and susceptible to technical problems in the first place. For the difficulties associated with lethal injections follow on the heels of problems that have arisen with the use of the electric chair and the gas chamber. In Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford Univ. Press, 2014), Austin Sarat documents the number of botched executions between 1890 and 2010. Here are the stats:
Executions in the US between 1890 and 2010

Method                                       No. of executions                Botch rate

Firing squad                                34                                          0%

Electrocution                               4,374                                    1.9%

Hanging                                       2, 721                                    3.1%

Gas chamber                               593                                       5.4%

Lethal injection                           1.054                                     7.1%

Killing a person quickly shouldn't be that difficult. A single bullet in the back of the head will do it. So will a volley of bullets in the heart from a firing squad. So, for that, matter will the blade of a guillotine. So why, given these simple, tried and tested alternatives, have judicial authorities in the US gone to all the trouble and expense of devising new methods, constructing special facilities, and passing special laws, just to do less efficiently what could actually be done very simply?

Technology fetishism certainly seems to be part of the reason. The electric chair was introduced in 1890, fairly soon after the development of electric street lighting. The supposed motivation was that electrocution would be more humane than hanging. Before it was used on a human being, electrocution as a means of killing was tested on hundreds of animals; but even so, its first use as a form of execution was essentially an experiment. The unfortunate guinea pig, and the first person to die in the electric chair, was Joseph Chappleau. After the first surge of current had passed through his body, Chappleau was still breathing. Before a second current could be administered, however, the generator had to be recharged. The second current singed the skin and ruptured blood vessels. The whole business lasted eight minutes. George Westinghouse opined that "they would have done better using an axe."

The need for ritual is another factor. The special facility set aside for this special purpose, the elaborate legal provisions, prison practices, and medical protocol, the witnesses behind the glass are all part of this. Very different to the sudden bullet from an unknown executioner in a prison basement that ends Koestler's Darkness at Noon. Preferable, too, one might say, if we value transparency. But still arguably excessive, except that the desire for ritual also expresses an appropriate solemnity, a sense of the magnitude–one is tempted to the awfulness–of the deed being done. 

The official justification for hi-tech rather than low-tech executions, of course, is that they are more humane. But this is highly debatable. To be humane is to be compassionate, considerate, and do what one can to alleviate suffering. One of the men executed recently in Arkansas, Marcel Williams, lay on the gurney for forty-five minutes while officials tried to insert an IV line into a vein. The psychological distress he endured is barely imaginable.

The most humane option, though, is surely the one chosen by virtually all other modern democracies, and that is to stop executing people. An awareness of this is, arguably, the deepest reason underlying the bizarre complexity of executions in America. The elaborate technology and procedures bespeak a bad conscience. On the one hand there is the deeply ingrained desire for revenge and for primitive justice to be done: an eye for an eye; a life for a life. On the other hand, there is the undeniable fact that, whatever the means, a killing is a killing–to execute people is to deprive them of life by force and against their will. As Judge Alex Kozinski wrote regarding lethal injections, "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."

The more "scientific" the method, the further removed it is from one human being deliberately ending the life of another human being with a swing of the axe or the firing of a gun, the less troubling it is to our moral souls. At least that is what the people behind the executions think, or hope. This speculation is borne out by psychological research on how people respond to a version of the "trolley problem" much discussed by philosophers. A runaway train is heading down a track to where it will kill five people strapped to the lines. A very heavy man is standing on a bridge. You can save the five by pushing him off the bridge and onto the track where his body will stop the train. One life lost instead of five. For a strict utilitarian, that's a good deal.  Yet most people are reluctant to endorse pushing the man. However, if the option, is instead to pull a lever so that the man falls through a trapdoor and onto the track, more people are willing to do it. When technology  makes the connection between our action and its ultimate consequence less immediate, we become less squeamish.

That executions are still taking place in twenty-first century America is lamentable. Yet the fact that the authorities have kept searching for "more humane" methods of killing prisoners offers grounds for hope. The hope is not that they will eventually stop botching executions due to needless complexity. Rather, it is that the quest reveals inner doubts about the whose grisly business of capital punishment. And this hope is supported by a very significant change in public opinion over the past quarter century. 

Twenty-five years ago, roughly 80% of Americans supported the death penalty. Today the number is 49%. Maybe, just maybe, the death penalty is in its death throes.

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