In the ongoing debate over the death penalty in America, some of the most significant battles involve execution methods. Over the decades, capital punishment opponents have mounted a tactically effective attack in this area, arguing for methods that cause the least possible discomfort to the condemned person.
It's easy to understand the appeal of this argument. The deliberate taking of a human life is a morally challenging act, even for those philosophically in favor of the death penalty. We might say we want a convicted murderer to die a painful death--"he ought to go through what he put those victims through." But for most of us, our essential humanity eventually takes over. Even those who believe that a particular execution is appropriate tend to want it carried out in as dignified and painless a way as possible, and away from our field of view.
It hasn't always been this way. Historically, state-sanctioned executions were carried out by comparatively "insensitive" methods, and also with much more direct community involvement. These executions took place in public view, sometimes with hands-on community participation. The Old Testament book of Deuteronomy, for example, prescribes death by stoning and includes the mandate that "[t]he hand of the witnesses shall be first against [the condemned man] to put him to death, and afterward the hand of all the people."
This seems shocking to our modern minds. Most of us couldn't imagine the thought of even witnessing a public execution, much less actively and physically participating in it. But in a way, such a regime is actually more protective of the accused person's rights.
In the modern American system, even those who support capital punishment are largely insulated from the consequences of that position. Civilians don't have to observe executions, much less participate in them. And even when we hear or read about a person being executed, the national focus on humane methods allows us to envision a relatively peaceful, painless process--akin to putting a pet to sleep, or assisting with a willing person's suicide
But that's wrong. The act of putting a conscious, unwilling human being to death is an inherently violent act. As Ninth Circuit Chief Judge Alex Kozinski recently explained:
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful--like something any one of us might experience in our final moments. . . . But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
This might seem like an argument to end capital punishment, on the grounds that if we really thought about what we're doing we wouldn't do it. It's not. I respect the view that capital punishment is inherently immoral and illegitimate--a view held by most of my criminal defense colleagues, including virtually all who defend capital cases--but I don't share that view personally. I believe that people of goodwill can legitimately take either position on whether the death penalty has a place in a modern society. But like Chief Judge Kozinski--himself a supporter of capital punishment, as he noted in this follow-up interview--I believe the debate is a better-informed one when we start with a clear picture of what we're doing when we put someone to death.
Interestingly, a recent trend instituted by stalwart capital punishment supporters may end up contributing to the openness of this discussion. As noted above, abolitionists have focused in recent decades on limiting the choices of execution methods, but reducing the condemned person's suffering has been only part of their overall strategy. They've also pressured private businesses to stop producing the chemicals necessary for executions, with the openly expressed goal of making the only legally available methods practically impossible to carry out.
In response, legislators in some states have authorized a return to older execution methods, at least as "backup plans" if drug-based executions are impossible to carry out. Utah, for example, has legislatively reinstated the firing squad, and Tennessee has permitted a revival of the electric chair.
Such changes may seem barbaric and inhumane to some. But there's actually an argument that, if implemented, the resulting regime would be more enlightened than the existing one--by forcing all of us to be more honest about what we're doing when we impose the death penalty. If we support that penalty, we should do so with a clear understanding of what we're doing. We're killing a human being who knows he's about to die and doesn't want to, and there's no serene, idyllic way to do that.
And we all share the responsibility for that imposition--the executioners may perform the final physical acts, but the prosecutor who seeks the penalty, the jurors who vote to impose it, and the voters who keep the regime in place all contribute to that ultimate decision. If we can do so while envisioning a "traditional," visibly violent execution method, perhaps we're ultimately justified in our support for the death penalty. But if we can only accept the idea of capital punishment by distancing ourselves from its inherent brutality--by, for example, convincing ourselves that the ultimate penalty can be imposed peacefully and painlessly--we may need to reconsider what we really believe.