On October 12th of last year, when Robert Pruett was executed by lethal injection, the State of Texas chose to use a single heavy dose of barbiturate in lieu of the standard three-drug cocktail. A week earlier, a state legal agency in California had rejected a similar procedure: anti-death penalty groups say it increases the risk of a botched execution. This prospect is not hypothetical. Over the past several years, the drugs used in lethal injection cocktails have become almost impossible to obtain. Some states, in their haste to eliminate prisoners, have deployed experimental execution procedures that resulted in less-than-humane deaths.
This is the great irony of lethal injection: while it spares viewers the spectacle of the gallows or the electric chair, it is considerably more error-prone than competing methods of execution. The so-called “botch rate” for lethal injection is 7.1%. Compare this with the firing squad, which successfully did its nasty job in 100% of cases between 1890 and 2010—though, in every case, it left behind a bullet-riddled corpse. It seems likely that when people refer to lethal injection as “humane,” they have the audience in mind.
The United States is the only Western country in which capital punishment persists. In terms of the absolute number of inmates executed per year, America often finds itself in the good company of nations such as Saudia Arabia, Iran, Iraq and Indonesia. The Saudis deploy a swordsman to behead citizens for such crimes as adultery and apostasy. The Iranians and Iraqis prefer a hangman, the Indonesians a firing squad. Americans favor the sterile anticlimax of lethal injection.
On Election Day a year ago, a revanchist impulse found success not just in the Presidential election but in plebiscites across the country. Nebraska’s voters reinstated capital punishment in a statewide referendum. Oklahomans changed their state constitution to emphasize their right to put criminals to death. In California, a proposal to ban the death penalty failed, but its mirror image—a proposal to speed up the process—succeeded.
The practice of the death penalty in the United States is, however, riddled with problems. These include the demonstrable frequency of wrongful conviction, the disproportionate use of capital punishment on black versus white Americans, and the absence of any convincing evidence that the practice makes Americans safer.
A widely cited 2014 study in the journal PNAS found that approximately 4% of those sentenced to die in the U.S. are innocent. The authors used data about exonerations to arrive at what they stressed was a conservative result. The figure makes explicit the implicit bargain at the heart of America’s death penalty: for every twenty-four guilty men we send to the death chamber, we attempt to murder an innocent one.
Organizations like the Death Penalty Information Center maintain a list of those executed prisoners who were likely innocent. The descriptions of these cases read like a generalized indictment of the American justice system. Richard Masterson (executed in 2016) was convicted thanks to the testimony of a fraudulent medical examiner who had falsified his credentials. The prosecutors who sent Lester Bower (executed in 2015) to the death chamber were shown to have withheld potentially exculpatory material. Cameron Todd Willingham (executed in 2004) was found guilty of setting a fire that killed his entire family, though a group of prominent arson investigators repudiated the investigation techniques used to convict him and though prosecutors seemed to have elicited perjury from a jailhouse snitch.
Empirical support for a deterrent effect is vanishingly scarce: a recent survey found that nearly 90% of American criminologists believe such evidence is nowhere to be found. Studies claiming to find evidence of a deterrent effect have been dismantled again and again by social scientists. Such studies tend to make unfounded assumptions about murderers’ perceptions, fail to take into account the effect of other (noncapital) punishments, and arrive at fantastically optimistic conclusions about the efficacy of capital punishment that are, in the words of one pair of economists, “outside the bounds of credibility.”
Capital punishment is plagued as well by persistent racial inequity. Amnesty International has found that, though black people and white people are murder victims in roughly the same proportions, 80% of those executed since the reinstatement of capital punishment in 1976 were sentenced for murders involving white victims.
Even in the face of all of this, it is not uncommon to hear the claim that the death penalty might still be a good idea because it saves taxpayers money. In reality, capital cases cost far more than others in almost every U.S. state. At the federal level, the costs of a death penalty trial are many multiples of the cost of one in which only a life sentence is at stake.
For now, the death penalty continues, despite the abundance of evidence suggesting that the American justice system is engaged in an expensive, unequal, and potentially torturous endeavor with no evident social value and a nontrivial likelihood of murdering an innocent person. Lethal injection is used almost universally.
Since Texas pioneered the procedure in 1982, lethal injections have made use of a three-drug cocktail: an anesthetic, which is supposed to numb the prisoner to pain, a paralytic, which immobilizes him, and potassium chloride, which stops his heart. Without anesthetic, a patient receiving a high dose of potassium chloride experiences something similar to having fire or electricity course through his veins, or to being burned alive from the inside. It is an excruciating sensation with no evident analogue in normal human life. With sufficient paralytic but insufficient anesthetic, the condemned experiences this torture but, being paralyzed, shows no significant outward signs of agony. This is the reason a paralytic is part of the cocktail: in the event of a botched execution, it spares the audience a gruesome spectacle.
Sometimes even the paralytic is not enough to conceal a mangled execution. It was likely for the comfort of the audience that, 16 minutes into the 2014 execution of Clayton Lockett, the blinds separating the viewing room from the execution room were closed: a typical execution by lethal injection lasts approximately 8 minutes. The Guardian‘s Katie Fretland, who was present at the execution, reported that, three minutes after receiving the drugs, Lockett “struggled violently, groaned and writhed, lifting his shoulders and head from the gurney.” Ziva Branstetter, from the Tulsa World, described seeing Lockett’s body “writhing and bucking”, and related that, ten minutes into the execution, Lockett “appear[ed] to be in pain.” 43 minutes after first receiving the injections, Lockett was finally declared dead of a heart attack. A lawyer for the next inmate scheduled to die told reporters that Lockett had been “tortured to death.”
Oklahoma delivered Lockett a previously untested combination of midazolam, vecuronium bromide, and potassium chloride. The amount of midazolam administered as anesthetic was insufficient to dull Lockett’s awareness of the potassium chloride slowly killing him, and he died in agony.
Before the execution, Oklahoma’s punitive machinery had threatened to jam. The increasing reluctance of pharmaceutical companies to provide drugs like sodium thiopental meant that death penalty states were forced to think creatively: some states bartered with each other, while others reportedly bought drugs on the black market. In summer 2011, the DEA seized several states’ supplies, citing questions about the manner in which they had been procured. Some news outlets reported that Oklahoma had purchased its supply of midazolam using petty cash, in order to make its source more difficult to track.
The extended details of Clayton Lockett’s crime are almost too horrible to contemplate. During a home invasion robbery that expanded to include kidnapping and rape, Lockett and his accomplices abducted a nineteen-year-old named Stephanie Neiman. Asked whether she would contact the police, Neiman affirmed that she would, and Lockett shot her. His accomplice, Shawn Mathis, then buried her alive.
To read the full account of this crime is to understand immediately why some people might want Lockett not just executed, but perhaps tortured. His is the kind of crime that makes thinking almost impossible. After Lockett’s execution, a reporter for the Los Angeles Times made his way to Perry, Oklahoma, where Neiman was killed, and found a population largely untroubled by the circumstances of Lockett’s demise. “If anyone ever deserved the death penalty,” said the district attorney who prosecuted the case, “Lockett did.”
Anyone who has discussed the death penalty is likely to have heard or expressed variations on this theme: the condemned deserve to die; the dead deserve justice; the state has an obligation to restore order to the world; ruthless murderers have forfeited their right to live. The language changes, but every such argument is fundamentally the same. It is not at all uncommon to feel, deep down, that some people deserve to die. Though this feeling is palpable, it is difficult to justify except by appealing to the simple fact of the rage itself.
It is not uncommon, either, for the defenders of the death penalty to appeal to their audience’s rage and disgust when arguing their positions. In 2015, the Nebraska State Senator Bill Kintner took to Facebook to express his thoughts on capital punishment. He posted a photo of a decapitated corpse to his timeline and accompanied it with a useful caption: “According to the Nebraska Legislature, the thugs that did this should just be locked away and well fed for the next 50 years of the [sic] lives. Anyone think the Legislature is thinking clearly?”
The occasion was the passage of LB268, which briefly ended capital punishment in the State of Nebraska. In order to pass the bill, the legislature overrode the veto of Governor Pete Ricketts, who was unhappy enough about the result that he threatened to execute his state’s ten remaining death row prisoners, on shaky legal justification and seemingly out of spite, after the bill was passed.
Kintner’s social media offensive mirrored the rhetorical techniques he had deployed during the floor debate over the bill, when he discussed the murder of 13-year-old Danny Eberle by the serial killer John Joubert:
“Joubert placed the helpless and bound Danny in the trunk of his car, drove to a secluded area–and this is in Senator Crawford’s district–and dragged Danny into the cornfield. In that cornfield Joubert pulled out a knife and ordered Danny to lie on his stomach. He took off his pants while the young man pleaded, please, don’t kill me. He slowly stabbed Danny but the wounds were not mortal enough, and then Danny was still alive when Joubert sliced the back of Danny’s neck. To make sure he was dead, he sliced a seven-inch gap into Danny’s legs all the way down to the bone. … Death was not instantaneous. Danny was aware for three to four minutes while Joubert inflicted nine cuts to the body before succumbing to death from loss of blood.”
A search of Kintner’s remarks for a more sophisticated argument is fruitless. He, and the others arguing in support of the death penalty, inhabited a world in which nothing mattered except the full sanguinary horror of the crimes of the condemned. The defenders of the death chamber felt that the facts of each crime were sufficient, and they described each horrific scenario in hopes that the full measure of human savagery would make their point for them.
Rarely, during the debate over LB268, did an anti-abolition argument take a form more sophisticated than that of Bill Kintner’s Facebook post. State Senator David Schnoor told the chamber that he was pro-life but that he was not “pro-life for the murderous savages because we will give you stories of what has happened in our state, and they are sickening.” He told a lurid tale that challenged Kintner’s in terms of detail, and quoted liberally from the Bible. Senator Merv Riepe read aloud the dictionary definitions of the words “innocence” and “evil” and, in keeping with the general theme, related the particulars of another brutal murder. Senator Mike Groene put the case in esoteric terms, telling the chamber that society needed to send “a strong message to evil.”
A rhetorical abyss yawned between the two sides. Contrast the true-crime style of debate with the testimony of a retired judge named Ronald Reagan, who had served on the three-judge panel that sentenced Joubert to death and who came before the legislature to argue against capital punishment:
“Iowa, a state without the death penalty, was less than two miles east of the kidnapping site. It wasn’t ignorance or stupidity that kept Joubert from taking his victim across the river. The legal consequences of his action simply played no part in his decision, nor does it in any other murderer’s. The general principle is affirmed by studies that show that bordering states, one without a death penalty and one with, have no higher murder rates than the non-death penalty state. The principle is in effect regionally, as well. The death penalty is now used almost exclusively in southern states. If capital punishment was a general deterrent, the per capita murder rate in those states should be lower, yet the reverse is true. We can repeal the death penalty, and there will be no detrimental harm to public safety. Given the time and resources attendant to capital cases from the police, prosecutors, and the court system, life without parole is the most efficient and effective penalty.”
Reagan and his fellow abolitionists came before the legislature ready to participate in the kind of reasoned discussion that is now rarely seen. They were met with fallacy and evasion. Their facts and statistics were not so much challenged as completely ignored. The opposition was united in a strategy that openly prized disgust over debate.
Behind each sophistic defense of the death penalty— behind photos of headless corpses, hazy platitudes about justice, and grisly chronicles of murder—is a perilous detachment from the common good. Whether they consciously accept it or not, advocates for capital punishment endorse a compromise entailed by its use. In exchange for the vaporous promise of Mike Groene’s “strong message to evil,” they risk subjecting an innocent person to the torture experienced by Clayton Lockett.
By hazarding this, society gains nothing. Perhaps an entry on some cosmic moral ledger or a warm, fuzzy feeling in the pit of Bill Kintner’s stomach. But the death penalty is useless. It satisfies no moral imperative; it saves no lives; it serves no purpose other than to satisfy a gut feeling that is no more justifiable than the base animal rage that drives a person to murder in the first place.
The results in Oklahoma, Nebraska, and California are, fortunately, upstream ripples in a river flowing steadily toward abolition. Poll data from Gallup shows that support for the death penalty has declined by twenty percentage points since its peak in the mid-nineties. The number of actual executions has also diminished: in 1999, the U.S. saw ninety-eight; in 2016, there were only twenty. In many states, judicial authorities have demonstrated reluctance to seek the death penalty.
Nonetheless, most Republicans and a large minority of Democrats continue to support the death penalty, and the parlous circumstances of political debate in the United States are all but certain to conquer rational conversation on the topic. The way of thinking and arguing typified by Kintner et al. is no longer simply tolerated and accepted. Emotional reasoning is, rather, the main driver for policy at the national level, particularly in the executive branch. The tendency to moralize shrilly, to appeal to the mystical power of the anecdote, to favor passions over reasons, is one that bridges America’s deep political divide. As capital punishment itself dies a slow and necessary death, abolitionists will have to contend with the moral and rhetorical attitudes that have sustained the enterprise into the twentieth century, and that threaten to obliterate what little reasoned conversation there remains to be had in the United States.