Questioning Capital Punishment
In the long, contentious history of capital punishment in America, there has never been a moment like this: Over just a few days in mid-December, judges in California and Maryland and the governor of Florida shut down any pending executions in those states--all because of rapidly growing doubts about the humanity and constitutionality of lethal injection. In less than a week, 1,052 death-row inmates were thrust at least temporarily beyond reach of the needle.
At first glance, the impact of each of these death penalty moratoria might seem limited. In Florida on December 16, Governor Jeb Bush suspended executions and set up a commission to study lethal-injection procedures, after the grotesque death of Angel Nieves three days earlier: The three-drug cocktail supposed to sedate Nieves and kill him painlessly and quickly instead left the inmate conscious, grimacing in pain and struggling for breath. It took half an hour and a second round of injections before the spectacle ended.
In California, US District Judge Jeremy Fogel declared that state's execution protocols rife with irregularities. In particular, Fogel raised serious questions about whether "certain inmates have been conscious" when injected with heart-stopping drugs, suffering "unconscionable" pain and anguish.
And in Maryland on December 19, the state's highest court shut down executions, finding Maryland's death penalty illegal because it had been established in secret and never subjected to a public hearing.
None of these orders address capital punishment itself. Governor Bush and the judges each focused on what might be described as "technicalities"--the choice of killing drugs, the training and accountability of executioners, the administrative procedures for an inmate's final hours. Bush and the judges each held out the possibility that, in Judge Fogel's words, execution protocols are "broken, but can be fixed."
Yet taken together, these three rulings--and a cascade of lethal-injection challenges in other death penalty states--have a cumulative significance far beyond their seemingly narrow terrain.
For the last decade, the issue that has driven the death penalty debate--galvanizing the attention of courts and press alike--has been innocence: a capital representation system so criminally negligent that 123 wrongfully convicted death-row inmates have been released, and public confidence in death sentences eroded.
Yet innocence cases, in their own way, have evaded a fundamental question: What about the grievously guilty? What about what one pro-death-penalty legal scholar calls "the worst of the worst"? Are executions of the truly guilty consistent with America's evolving constitutional standards, with national ideals and worldwide human rights norms?
As the three orders make clear, the new challenges to lethal injection cut much closer to that question--forcing a confrontation with America's ambivalence about state-sponsored killing.
Behind all three rulings is a growing body of evidence that lethal injection is far from the humane alternative to electrocution or gassing that legislators around the country sought after the Supreme Court reinstated capital punishment in 1977. As the shocking death of Nievas illustrated--though it was far from the first case to do so--lethal injection is often anything but neat. In California, for instance, what Judge Fogel described as a "mountain of documents" and expert testimony suggest that in at least six of the state's thirteen executions by lethal injection, inmates may have been conscious when injected with drugs that stopped their breathing and hearts, which the state's own medical expert agreed would bring "unconscionable" pain.
Mark Heath, a medical doctor and anesthesiologist and researcher at Columbia University, reviewed California's execution logs and the medical records of inmates. In October, he told Judge Fogel that he found cases in which sedation appeared to have failed, procedures that fall below even the legal requirements for veterinarians euthanizing animals and an execution system that "creates medically unacceptable risks of inflicting pain and suffering on inmates."
Heath has called the three-drug cocktail widely used by states and the federal government a "chemical veil," because it masks inmates' suffering through the paralyzing drug pancuronium bromide, freezing their muscles and facial expression before the final heart-stopping drug courses into their veins.
Along with the chemical veil, it turns out, is a veil of bureaucratic secrecy. In Maryland and California and other states, lawsuits are beginning to reveal a scandalous culture of death-row corruption cloaked by governments' habitual insistence on keeping their execution procedures confidential. Guards with sordid records of sadism make it onto execution teams. In California, one guard was added to the team even after he was caught smuggling drugs into the prison. After reviewing prison records, Judge Fogel found evidence that barbituates stockpiled at San Quentin for executions were in fact diverted and sold by guards, and he urged a criminal investigation.
The picture emerging is of an execution system both cruel and corrupting. But will these scandals threaten the political underpinnings of American capital punishment?
Americans--citizens and courts--have long held contradictory views on the death penalty. The proponents of lethal injection over the years have understood that ambivalence well--better, in some ways, than many death penalty abolitionists. In the early 1970s, a moment when capital punishment was on the ropes, then-California Governor Ronald Reagan suggested that the public might lose its squeamishness if instead of the brutal electric chair prisoners were put down like horses on his ranch, with a painless shot. Bill Wiseman, then an Oklahoma state legislator, in 1976 crafted the nation's--and the world's--first lethal-injection law after the state medical examiner promised a three-drug cocktail would be humane, quick and neat. (Wiseman is now an ordained minister and death penalty opponent.)
Jeb Bush switched Florida to lethal injection after the nauseating 1997 electrocution of Pedro Medina, complete with flames shooting from the dying man's skull and the smell of his burning flesh filling the witness chamber. His swift imposition of a moratorium after the Nieves execution last week suggests that one pro-death penalty governor at least sees real risks in the lethal-injection scandals.
Bush's moratorium and study, in turn, raise another critical issue. Judge Fogel and Gov. Bush both seem to think that the lethal-injection system, in Judge Fogel's words, "can be fixed." But it is worth asking, Why haggle over the method of execution? Why encourage politicians technocrats to invent a better mousetrap?
For starters, as the Nieves execution and a mountain of medical evidence make clear, lethal injection inflicts genuine suffering on death-row inmates. Confronting lethal injection in the courts also slows the pace of execution and saves lives, buying time for individual appeals and ongoing reconsideration, state by state, of capital punishment's manifold perversions of justice.
Finally, and most important, the Supreme Court's reversals in recent years--its wholesale rejection of executions of juvenile offenders and the retarded--suggest that "evolving standards of decency" are real. Polling data suggest the same thing. To Americans the other methods of state killing employed by a diminishing number of nations--beheading (Saudi Arabia), the shot behind the ear (China), the gallows (Iran)--all seem archaic, visceral, violent. Cool, clinical and peaceful, lethal injection was supposed to overcome public revulsion, but it will not always do so. California may concoct a new drug cocktail or protocol that satisfies Judge Fogel; when Jeb Bush leaves office in January his successor will likely lift the moratorium. But even in the lingering, unforgiving shadow of September 11, the country continues its march away from capital punishment.