What's the "best" form of capital punishment?
Hopes&Fears answers questions with the help of people who know what they are talking about. Today we wondered, if the state insists on killing people, what's the "best" way to do it?
The death penalty is such an ingrained part of the U.S. justice system, and such a persistent source of controversy, that it's easy to forget that it was once, briefly, banned nationwide. Today, 31 states authorize the use of capital punishment. The majority of those states primarily use the method of lethal injection. In fact, there are five methods of execution that are authorized in America, but all of the 27 cases carried out this year utilized lethal injection.
It hasn't always been this way. Hanging is the current most common method of execution around the world, and was the traditional method of execution in the U.S. prior to the 20th century. Other options included death by burning, crushing and breaking on a wheel. While it seems unlikely that burning people at the stake will ever come back into practice, lethal injection has been under fire recently due to many botched procedures and an unavailability of the drugs that are used to execute prisoners. A recent scandal finds six states facing accusations that they "skirted federal law and turned to black-market dealers" in order to acquire drugs for lethal injection. Perhaps most disconcerting is the fact that use of new drugs and administrative incompetence often leads to prisoners taking far longer to die and reporting tremendous pain in the process, which brings up the nation's prohibition on cruel and unusual punishment. We know the procedure isn't going the way it's supposed to, but dead men tell no tales—it can be difficult to prove cruelty and the level of pain an inmate experiences.
Because of the questionable nature of our current preferred procedure for capital punishment, as well as the tenuous likelihood that it will even be able to continue due to the shortage of drugs, we wanted to know what the "best" method might be for a state to end someone's life. We asked death penalty and medical experts to give us an informed opinion about the most humane, efficient and effective method of execution. Their answers show us why this particular issue is so thorny, and how difficult it is to separate the legal, practical, professional and existential factors involved.
Director of the Neuroscience and Law Center at Fordham University School of Law
NO QUESTION IT WOULD BE FIRING SQUAD. Firing squad in terms of efficiency, and everything that you mentioned, is the best thing for several reasons. It’s a method that we already have, so we’ve used it. It’s not a method that has yet to be created.
Maybe that new method will be available, but there’s nothing now that’s been used or suggested that would be more efficient.
It’s the only method with which people are actually trained to kill. Every other method we’ve used in the U.S. has been a method devised for the execution process itself whereas firing squad, we’re firing a weapon, which is something that’s done throughout the country on a daily basis, in many capacities: police, guards, etc, so we have innumerable people who are trained to use a firearm and trained to kill. There’s nothing else like it that exists.
In terms of having a ready squad of people who are qualified and have been trained to kill, and it’s a method that has been shown to induce heart death within a minute, it has not failed. The only time it has, historically, is because there’ve been some quirky, bizarre efforts, otherwise it’s always gone off as planned. There’s no other method of execution that we’ve ever conducted for which you could say that.
Why isn’t it used? It has bad PR. Because it’s a method of killing, people ironically associate it with death and that’s the catch-22. Because it’s associated with death, people find it shocking to use, so they’d rather use a method that isn’t associated with death, about which people know nothing, and which has a highly flawed success rate. None of it makes much sense, and it never has. When you start talking about killing, there’s such ambivalence.
It reminds people of third world countries, or wars and assassinations and ISIS. The latest image or photograph of someone using a gun is ISIS lining people up to shoot when they’re not beheading them. This is people’s association, but it’s an irony because lethal injection is so much worse.
This ambivalence about the death penalty has been driving the punishment itself ever since we’ve had it, but most particularly the selection of execution methods. There're all these ways of sort of denying what we’re really doing which is executing people and punishing them. It seems like everything comes to a fore in our heads when you’re talking about execution methods. To me, it’s always been this symbol of what the death penalty is about in terms of its error, its use against minorities, and the confusion and disarray surrounding the death penalty. It’s this ambivalence towards this punishment that we’ve had throughout the history of our country that we feel so strongly about maintaining. At the same time, it divides all sorts of ways, to makes us forget what we’re doing—or try to.
Dr. Austin Sarat
William Nelson Cromwell professor of Jurisprudence and Political Science at Amherst College in Amherst, Massachusetts.
In a way, I think the answer to the question is that there is no best form of capital punishment. The reason there’s no best form of capital punishment is that there may very well be a paradox in which the forms of execution that impose the least physical pain may impose the most psychological pain, as well as be offensive to contemporary standards of decency.
We have no idea what people experience when they experience an execution—the labs haven’t been able to report this to us. Some modes of execution—like lethal injection—are designed to make it impossible to read the signs on the body. When lethal injection works well, and works as it’s supposed to work, the first drug of the traditional three drug [protocol] kind of tranquilizes the prisoner so the body wouldn’t register its pain. If you’re interested in knowing which is the least painful, I think we really can’t know.
What we can do is speculate. Speculation suggests that the forms of execution which impose the least physical pain may be the most psychologically devastating and the most offensive to us. A 9th Circuit Court of Appeal Judge named Alex Kozinski said “Well, the best method of execution is the guillotine.” He may be right, that may be the best method of execution, but the best from what perspective? It may be that the guillotine severs the head from the spinal cord in such a way that pain is not registered, but it’s astounding and dreadful to contemplate.
We know what methods of execution have been botched the most. Between 1900 and 2010, approximately 3% of all American executions were botched. A botched execution is an execution which does not conform to the legal protocol or standard operating procedure. Standard operating procedure says that when a hanging is done right, it’s supposed to break the neck. So if the hanging doesn’t break the neck and someone is strangled to death at the end of the rope, that’s a botched execution. 3% of all hangings were botched during that period, about 2% of executions in general were botched. About 5% of gas chamber executions were botched, and 7% of lethal injections were botched.
The method of execution that was used the least—and I mean the least —was the firing squad. There’ve been about 8,700 executions between 1900 and 2010, and there were only 34 uses of the firing squad. There were no reported botched firing squads during the period, though there were some earlier than that period. That’s what we know about the failure rate by this method of execution.
Most common methods of execution in the world
Shooting by firing squad
Falling from an unknown height
SOURCE: Cornell Law School
Dr. Joel Zivot
Associate Professor of Anesthesiology and Surgery
Emory University School of Medicine
People fall into one of two camps when discussing capital punishment. On one side, people take the position that we must be tough on crime, and if the person who is convicted is perhaps someone who didn’t show any mercy, anything that feels like an act of mitigation of the harshness of the punishment feels disrespectful to survivors. Those people claim that very fervently.
On the other side, people say capital punishment is wrong because it’s improperly applied, because killing is wrong or because it’s skewed towards men of color primarily. In a subsect of that, people make characterological claims about the person who is to be executed. For example, they say things like “Well, during prison the inmate has reformed. Although they did something bad, a decade or so down the line, they’ve found religion, they’ve become a person who’s improved their character. On the basis of the improvement of their character, the punishment no longer fits the crime.”
That’s kind of the two camps, and there’s no middle ground in this discussion. That’s my observation. For me, as a physician, the point that I’m trying to occupy really specifically directs this question of using medicine to kill. My view on this is that medicine can never be used to kill under any circumstance, and certainly not as a tool of a state that wishes to carry out capital punishment. I’m not an expert in criminal justice. I have no comment on whether or not the person convicted was convicted fairly, and I have no comment on whether the person convicted is of fine moral character or not. Those are valuable questions, and I’m not without my sensitivity to what’s at play. My view is that medicine has no role here. In fact, by states usurping medicine, it has actually, I think, damaged and hampered the thoughtful discussion of whether we, as a society, want to have capital punishment at all.
I think what lethal injection has done, is it’s covered up what’s actually happening, which is that a person’s being killed. Second thing I would say, where there’s also been confusion, and why I categorize people into different camps as I did originally, has to do with the question of humaneness. Humaneness is an interesting word. What does it mean to be humane? I guess it means human-like, which is an odd kind of thing to claim. Commonly, I guess when we think of humaneness we think of kindness, or we think of something that is painful, and something akin to that. To be clear, the Constitution doesn’t actually stipulate “You need to be humane.” If you’re talking about capital punishment being humane, there’s actually no requirement for humaneness the way humane is understood commonly. The concern related to the constitution has to do with this concept of needless cruelty. The question is, if there’s no cruelty, is capital punishment therefore humane? I think not. I’ve written before that the absence of cruelty isn’t the presence of humaneness.
Lethal injection, up to now, has created an appearance of a painless death. That again, is kind of a myth. That’s kind of a psychological myth that’s happening there. The courts are struggling with the science here. There is, of course, no scientific way to answer the question because you didn’t design an ethical trial. Imagine a trial where you had two inmates, where we randomized them to receive one form of capital punishment versus another, and then evaluated the cruelness of it, and then inquired of the now dead inmate, if their execution is cruel or not. You can imagine there’s no way to measure this scientifically. Although the tools of science or terms of science are usurped here or used improperly. That’s an ongoing problem.
Capital punishment has been about appearances, and what we define as cruel, that, of course, has changed with the evolution and maturation of civil society. The standard of cruelty is kind of a public standard; it’s what it looks like. For a long time, lethal injection was fine from the public’s perspective. What happened was there then became this problem of drug shortages, and drug shortages are an international problem. They’re very much a problem in my actual practice. There are shortages all the time. The drugs that were also involved in capital punishment were drugs I was using to heal people, and some of them have disappeared. States have scrambled to find alternatives, and in the alternatives, what has been discovered is that now executions take longer, or inmates struggle; there’s all sorts of things that are being seen that’s alarming the public. Now people are saying, 'Maybe lethal injection isn’t as cruel as we thought it was.'
People say an execution is botched, which I think is a funny kind of term because if you’re saying it’s botched, you’re saying that it can be improved. I don’t know. How do you improve killing someone? I guess at the end of the day, if the inmate is killed, I suppose capital punishment was a success. If you think that the only standard is that there must be the production of a corpse. There was a case with an inmate where it was impossible to establish IV access. I think that person is still alive somewhere. So I guess that was a failure of capital punishment.
The real question is, as a society, what’s our view on capital punishment? That’s the first question. Until we can answer that question, the technique of execution should be set aside and separated. I guess that perhaps there are those that say, "if you can make execution look better, then the public will feel like it’s ok." So those people who favor capital punishment are the ones, really, who are invested in an answer to “How do we make this look better?” I suppose the people who aren’t in favor would take the opposite approach. They would want capital punishment to look horrendous. They would feel, then, that the public would shift in their favor.
If an injection is thought to be done by some sort of an injection protocol, and the injection protocol fails to kill somebody, what then? It turns out that prisoners are the only citizens in this country who have a constitutional right to health care. That right to health care goes all the way up until the time of execution, and perhaps it’s set aside during execution, because how do you kill someone and take care of them at the same time?
There was a very famous case of Clayton Lockett in Oklahoma where there was a problem with his execution, and he was still alive when the execution was intended to have killed him. People who were witnessing it didn’t know what to do. They sort of stood around and were very much dismayed. Eventually, about 40 minutes later, he died. I would suggest that because the execution failed, certainly Mr. Lockett’s right to health care would have [been restored]. By not resuscitating him, the state actually murdered him. Execution can’t be any kind of killing; it has to be a particular kind of killing. If the constitutional method that you’ve decided upon fails, you can’t just hit them over the head or suffocate them with a pillow. You’re trying to create a civilized killing, and that’s an uncomfortable place to be.
Support for the Death Penalty
How many people support the death penalty in the U.S.?
A new Pew Research Center survey finds 56% favor the death penalty for people convicted of murder, while 38% are opposed.
How many countries have banned the death penalty?
Amnesty International reports that as of the end of 2013, more than two-thirds of all countries have abolished death penalty in law or in practice.
How many countries have authorized the death penalty?
The death sentence is retained by the legal system of 58 countries.
What is the E.U.’s position?
The European Union holds a strong and principled position against the death penalty
What is the U.N.’s position?
UN Human Rights Office supports Member States, civil society and other stakeholders campaigning for a moratorium on the death penalty and ultimately its abolition worldwide.
Executive Director of the Death Penalty Information Center
The question presupposes that there is a ‘best’ form of execution. From the perspective of the innocent death row inmate, the best form of death is to be exonerated and die of natural causes at home. From the perspective of other death row prisoners, the best form of death is to die of natural causes in jail. If you ask the European Union or you ask Pope Francis, there is no meaningful differentiation between types of executions. All executions, they say, are a violation of international human rights law. As Pope Francis says, there is no “humane” way of executing a person.
I think that Judge Kozinski, US Court of Appeal 9th Circuit, was right when he said that the death penalty is inherently violent, irrespective of what means states attempt to use to carry it out. Every method of execution that has been proposed has its own set of problems. I think people of good faith, whether they support or oppose the death penalty, believe that if it’s going to be carried out, it should be done in as swift and painless a manner as possible. But there isn’t agreement on what that manner is, nor is there a lot of confidence that whatever manner states use, they are able to properly carry it out.
Virtually every method of execution in recent times has been proposed because it’s supposedly going to be more humane than other alternatives—swifter and involving less pain. That’s the argument that was made for the guillotine—swift, humane—and the same argument made by Thomas Edison for the electric chair.
Similar problems are present with every method of execution: the electric chair, which supposedly was supposed to be swift and humane, has proven that it’s not. Numerous incidences of botched electric chairs, such as prisoners catching on fire, or the state incompetently using a synthetic sponge instead of a natural sponge causing the defendant’s face to stream with blood. States then moved to lethal injection because, in many instances, of the fear that electrocution was going to be declared cruel and unusual punishment.
When they moved to lethal injection, they said that was going to be swift and painless, but the states didn’t get advice from doctors because that would have been unethical to do so. They concocted these methods that have no medical validity and essentially are medical procedures administered by people with no medical training and little if any ability to respond if something goes wrong.
If you want to execute people by hanging, or by firing squad, those are overtly violent forms of execution, and even if they work, they are the types of viscerally violent acts that most people in America find to offend their sensibilities. If you want to execute somebody with lethal gas, as Oklahoma has suggested it will do if it’s unable to carry out lethal injection, you raise the specter of the Holocaust, and everything that goes with that.
I think the answer to the question “What is the best manner of execution?” is one that has no easy answer, and may have no answer at all. The practical question is “What manner do state legislatures feel most comfortable with, and what manner will the public be willing to tolerate?” Public opinion polls show that ⅓ of responders said that if lethal injection was not available as a means of execution, the appropriate response would be to abolish the death penalty altogether.
The ultimate question for society is that if we acknowledge that the forcible taking of a human life, by the state, against a prisoners’ will, is an inherently violent and inhumane act, then what are we willing to stop as a way of killing prisoners?
Current methods of execution in the United States
33 States + the U.S. Military and government
source: Death Penalty Information Center