Cruel and UnusualDeborah W. Denno in The New Yorker, December 23, 2013
by Jeffrey Toobin
Pity the modern executioner. The Supreme Court has burdened him with obligations that reflect considerable ambivalence about his profession. (States generally do not release the names of executioners, but they appear to be almost all men.) The underlying task has remained unchanged throughout history, but over the years the Court has mandated that executions be conducted with some finesse. In 1890, the Justices said that the process could not include “torture or a lingering death.” Accordingly, in 2008, the Court rejected a challenge to execution by lethal injection—the prevailing method in the thirty-five states with prisoners on death row—because, as Chief Justice John Roberts noted in his opinion, the procedure did not present a “substantial risk of serious harm.” In other words, death is required, but harm is forbidden. Clear?
The story of the death penalty in this country illustrates a characteristically American faith in a technological solution to any problem. For the first century after independence, hanging (imported from Britain) was the method of choice, though firing squads were occasionally employed. Then, shortly before the turn of the last century, electric power transformed life in cities—and the death penalty, too. Yet, then as now, feelings about it were mixed. Thomas Edison, fearing negative associations for his direct-current technology, advocated using his rival George Westinghouse’s alternating current for what became known as the electric chair. Worried about the same thing, Westinghouse financed the appeal of the first defendant sentenced to die in an A.C.-powered chair, but he was unsuccessful. In 1890, in Auburn, New York, William Kemmler, convicted of murdering his common-law wife, became the first American to be executed by electrocution. According to a grimly fascinating database of executions in the United States from 1608 to 2002, compiled by M. Watt Espy and John Ortiz Smykla, some four thousand people followed Kemmler to the chair. The gas chamber came into use in 1924, in Nevada, and, despite the Court’s 1890 ruling, both methods, though refined over time, malfunctioned periodically. In the nineteen-eighties, they were marred by an association with Fred Leuchter, Jr., a self-taught engineer who supplied execution equipment to many prisons, and turned out to be a Holocaust denier.
The Chief Justice, in his 2008 opinion, wrote that “the firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection.” That suggests a more logical process than actually took place. In 1977, state legislators in Oklahoma asked Jay Chapman, the state medical examiner, to come up with a more contemporary method of execution. As he later told Deborah Denno, a professor at Fordham law school, he “was an expert in dead bodies but not an expert in getting them that way.” Still, he devised what became known as the “three-drug protocol.” A prisoner is injected first with sodium thiopental, a barbiturate anesthetic; then with pancuronium bromide, a muscle relaxant; and, finally, with potassium chloride, which causes cardiac arrest. Chapman’s protocol was first used in Texas, in 1982, and it quickly became the national standard.
But, in recent years, complications have arisen. In 2009, Hospira, Inc., the sole American manufacturer of sodium thiopental, stopped production of the drug at its plant in North Carolina. The company intended to shift production to Italy, but the government of that nation, which prohibits capital punishment, demanded a guarantee that none of the drug sold would be used for executions. Hospira felt unable to enforce the agreement—and claimed not to condone such use, anyway.
What followed was a black comedy of increasingly desperate attempts by prison officials to procure sodium thiopental. Under pressure from European authorities, legitimate pharmaceutical companies began refusing to provide it. For a time, officials obtained the drug from a middleman in London, who shared office space with a driving school. Then, in 2012, a federal court told the Food and Drug Administration to block its importation, because the source had not been properly certified. Some states had already moved to replace it with the barbiturate pentobarbital, but Denmark, the sole producer of that drug, had refused to allow its sale for executions. Missouri then adopted a one-drug protocol, seeking to inject an overdose of propofol, a well-known drug used in medical anesthesia. (Michael Jackson died of a propofol overdose.) Here, too, a manufacturer objected, issuing a statement that the use of propofol “in executions—regardless of its source—could lead to sanctions by the European Union that would threaten the U.S. supply of this indispensable drug.” Now seven states, including Missouri, have turned to the shadowy world of “compounding pharmacies,” which can obtain and create drugs without F.D.A. supervision. The risks of these substances being contaminated, or insufficiently effective, are considerable.
This macabre commerce takes place against broader changes in Americans’ views of capital punishment. Gallup has conducted a poll on the death penalty since 1936. In 1994, eighty per cent supported it, the highest number on record; in 2013, sixty per cent did, the lowest number since 1972. This year will be the fourth straight year in which there have been fewer than fifty executions, down from a peak of ninety-eight, in 1999. The national death-row population has remained essentially stable, at about three thousand, for nearly a decade. Prosecutors and defense lawyers agree that jurors, chastened by DNA exonerations in recent years, are less likely to impose death sentences. Three hundred and fifteen were handed down in 1994; seventy-eight were in 2012. During the same period, the murder rate also plunged, rendering especially hollow the traditional argument that the death penalty serves as a deterrent. It now exists in a kind of twilight, a fading but still significant presence in American life. To paraphrase the Eighth Amendment, executions have always been cruel; now they are unusual, too.
The oxymoronic quest for humane executions only accentuates the absurdity of allowing the death penalty in a civilized society. It’s understandable that Supreme Court Justices have tried to make the process a little more palatable; and there is a meagre kind of progress in moving from the chair to the gurney. But the essential fact about both is that they come with leather straps to restrain a human being so that the state can kill him. No technology can render that process any less grotesque.