A kinder, gentler execution?

Jacob Sullum

6/14/2006 12:05:00 AM - Jacob Sullum

Supporters and opponents of the death penalty should be united in dismay at the bizarre debate about whether lethal injection as currently practiced in the United States is a sufficiently "humane" method of execution. Under the relevant legal precedents, which hold that the death penalty is not in itself "cruel and unusual punishment" but suggest that inflicting unnecessary suffering while carrying it out might be, the official attitude toward a condemned prisoner is strangely ambivalent: We don't want to hurt him; we just want to kill him.

If someone commits a crime so heinous that he forfeits his right to live, why should we be troubled by the possibility that he might experience a few minutes of pain on his way to oblivion? And if execution is wrong, how can making the process more comfortable make it right?

The lethal injection controversy, which is heating up now that a unanimous Supreme Court has said prisoners can challenge execution methods under the Civil Rights Act of 1871, focuses on the protocol followed by almost all of the 36 states that allow capital punishment: The executioners strap the condemned prisoner to a gurney, connect an IV tube, and use a machine to administer sodium thiopental, a barbiturate that is supposed to knock him out; pancuronium bromide, which paralyzes his muscles; and potassium chloride, which stops his heart.

There is some anecdotal and autopsy evidence that prisoners do not always receive enough of the barbiturate to render them completely unconscious. Without adequate anesthesia, notes a 2005 study in the Lancet, "the condemned person would experience asphyxiation, a severe burning sensation, massive muscle cramping, and finally cardiac arrest."

To which some death penalty supporters respond: So what? "There are some people who deserve a quick but painful death," New York Law School professor Robert Blecker told The New York Times. "If you are a sadist who rapes, consciously inflicts pain and takes pleasure in it as you torture your helpless innocent victim to death, then you deserve to die quickly but painfully."

Opponents of the death penalty, for their part, may use questions about lethal injection as a delaying tactic, but they obviously can't believe an additional gram of thiopental is the difference between right and wrong. And if their challenges result in new procedures, they may ultimately make the public more comfortable with executions.

The search for kinder, gentler ways to kill people suggests many supporters of the death penalty have mixed feelings about it. They favor it in theory, but they don't want to confront the reality of it. Rather than a public hanging or decapitation, they prefer a hidden, sterilized, medicalized, mechanized approach.

I can sympathize. I've always supported the death penalty, but my doubts are growing for several reasons.

The possibility of executing innocent people, which is the sort of mistake you can't correct, understandably leads to elaborate procedural protections, which in turn make the legal process ridiculously slow. Clarence E. Hill, the Florida cop killer whose lethal injection challenge the Supreme Court allowed to continue, was convicted of murder 23 years ago.

Because the death penalty is so time-consuming and expensive to pursue, it's the exception rather than the rule for murderers. Over all, there is little rhyme or reason to decisions about which ones will be executed.

More fundamentally, I wonder if we're dodging the central issue: Granted that some people deserve to die, should the state be empowered to kill them in cold blood?

There's an undeniable intuitive appeal to the biblical injunction, "Whosoever sheds man's blood, by man shall his blood be shed." At a time when there were no prisons to incapacitate murderers, this approach certainly was better than the alternative. But now that murderers can be locked away for life, I'm not sure it is anymore, especially given the arbitrary results of the government's system for choosing between these two options.