Content of Part 2
Barbarity
The traditional mode of execution, still available in a few states, is hanging. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.
Two states, Idaho and Utah, still authorize the firing squad. The prisoner is strapped into a chair, and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.
Electrocution has been the most widely used form of execution in this country in this century. The condemned prisoner is led-or dragged-into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness.
In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows: "At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans' body. It lasted thirty seconds. Sparks and flames erupted ... from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead. The electrode on the left leg was refastened.... Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request ... was denied."
"At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans' body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes."(38) Afterwards, officials were embarrassed by what one observer called the "barbaric ritual." The prison spokesman remarked, "This was supposed to be a very clean manner of administering death."(39)
An attempt to improve on electrocution was the gas chamber. The prisoner is strapped into a chair, a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form lethal gas. Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U. S. Supreme Court Justice John Paul Stevens:
"When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.
"At this point Don's body started convulsing violently....His face and body fumed a deep red and the veins in his temple and neck began to bulge until I thought they might explode.
"After about a minute Don's face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.
"After several more manuals, the most violent of the convulsions subsided. At this time the muscles along Don's left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.
"Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.
"Don Harding took ten minutes and thirty one seconds to die." (Gomez v. U.S. District Court, 112 S.Ct. 1652)
The latest mode of inflicting the death penalty, enacted into law by nearly two dozen states, is lethal injection, first used in Texas in 1982.
It is easy to overstate the humaneness and efficacy of this method. There is no way of knowing that it is really painless. As the U.S. Court of Appeals observed, there is "substantial and uncontroverted evidence ... that execution by lethal injection poses a serious risk of cruel, protracted death.... Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation." (Chaney v. Heckler, 718 F.2d 1174 [1983])
Nor does the execution always proceed smoothly as planned. In 1985 "the authorities repeatedly jabbed needles into ... Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser."(40)
In 1988, during the execution of Raymond Landry, "a tube attached to a needle inside the inmate's right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses."(41)
Indeed, by its veneer of decency and by subtle analogy with life-saving medical practice, death by lethal injection makes killing as punishment more acceptable to the public. Even when it prevents the struggles of the condemned person and avoids maiming the body, it is no different from hanging or shooting as an expression of the absolute power of the state over the helpless individual.
Most people observing an execution are horrified and disgusted. "I was ashamed," writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. "I was an intruder, the only member of the public who had trespassed on [the condemned man's] private moment of anguish. In my face he could see the horror of his own death."(42) Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens however unsentimental they are about crime and criminals-are opponents of capital punishment.
In some people, however, executions seem to appeal to strange, aberrant impulses and give an outlet to sadistic urges. Warden Lewis Lawes wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant, "I received more than seven hundred applications for the position, many of them offering cut-rate prices."(43)
Public executions were common in this country during the 19th century; one of the last was in 1936 in Kentucky, when 20,000 people gathered to watch a young African-American male hanged.(44) Delight in brutality, pain, violence, and death may always be with us. But surely we must conclude that it is best for the law not to encourage these impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.
More than two centuries ago, the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishments (1764), asserted:
"The death penalty cannot be useful, because of the example of barbarity it gives men." True, and even if the death penalty were a "useful" deterrent, it would still be an "example of barbarity." No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."(45)
Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim will not bear scrutiny. All punishment by its nature is retributive, not only the death penalty. Whatever legitimacy, therefore, is to be found in punishment as just retribution can in principle be satisfied without recourse to executions.
It is also obvious that the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug kingpins). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life.
As Camus wrote, "For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life."(46)
It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their deserts-"making the punishment fit the crime."
If this principle is understood to require that punishments are unjust unless they are like the crime itself, then the principle is unacceptable.
It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishment s on offenders. It would require us to betray traitors and kill multiple murderers again and again, punishments impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murderers.
If, however, the principle of just deserts is understood to require that the severity of punishments must be proportional to the gravity of the crime, and that murder being the gravest crime deserves the severest
punishment, then the principle is no doubt sound. But it does not compel support for the death penalty. What it does require is that crimes other than murder be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.
Criminals no doubt deserve to be punished, and punished with severity appropriate to their culpability and the harm they have caused to the innocent. But severity of punishment has its limits-imposed both by justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.
Some whose loved one was a murder victim believe that they cannot rest until the murderer is executed. But the feeling is by no means universal.
Coretta Scott King has observed, "As one whose husband and mother-in-law have died the victims of murder assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the tacking of a human life. Morality is never upheld by a legalized murder."(47)
Kerry Kennedy, daughter of the slain Senator Robert Kennedy, has written: "I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.... But even as a child one thing was clear to me: I didn't want the killer, in turn, to be killed. I remember lying in bed and praying, 'Please, God. Please don't take his life, too.' I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family-another set of parents, children, brothers, and sisters thrown into grief."(48)
It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, as though life imprisonment were obviously more expensive than executions. If one takes into account all the relevant costs, the reverse is true. "The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment."(49)
A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs - including the time of judges, prosecutors,public defenders, and court reporters, and the high costs of briefs-are all borne by the taxpayer.
A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison.(50)
In Maryland, a comparison of capital trial costs with and without the death penalty for the years 1979-1984 concluded that a death penalty case costs "approximately 42 percent more than a case resulting in a non-death sentence."(51) In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of "more than $ 11 million."(52) Florida, with one of the nation's largest death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence.(53)
The only way to make the death penalty a "better buy" than imprisonment is to weaken due process and curtail appellate review, which are the defendant's (and society's) only protections against the grossest miscarriages of justice. The savings in dollar s would be at the cost of justice: In nearly half of the death-penalty cases given review under federal habeas corpus, the conviction is overturned.(54)
