Recently the U.S. Supreme Court declined to hear a case involving a 75-year-old man on death row in Alabama (Arthur v. Dunn, 580 U.S. ___ (2017) (Sotomayor, J., dissenting from denial of cert)). At issue was whether one of the drugs used in Alabama’s lethal injection procedure would cause “intolerable and needless agony” (id. at 1). Without the drug, the inmate might suffer “what may well be the chemical equivalent of being burned at the stake.” (id. at 2 (quoting Glossip, 576 U.S. ___ (2015), citations omitted)). The inmate did not dispute his death sentence, and even asked for a firing squad to serve as the manner of his execution (Arthur, 580 U.S. at 7). He also provided evidence that a firing squad would be a more humane way to die (id.).
Five Thirty Eight published this article which evaluated the claim that a firing squad might be more a more humane execution than lethal injection. I highly recommend people on both sides of the discussion read it, as it goes into many more issues surrounding executions in this country. Also, I recommend reading the dissent in Arthur and the Glossip case, as they provide a lot of insight into how lethal injections are carried out.
These cases raise some interesting issues regarding capital punishment.
I’ve seen two posts recently (here and here) which include discussions on the death penalty. Regardless of whether one is for or against it, manner of execution is another aspect of how people discuss this issue. Firing squads have been rejected publicly because of a number of different reasons. Indeed, the journey from hanging to electrocution to gas chambers to lethal injection has occurred because the public constantly looks for more humane ways of carrying out a death sentence.
However, as the Glossip case notes, a lack of a necessary drug to carry out a death sentence has forced states to find less suitable alternatives. This has pushed the issue of the messy business of ending an inmate’s life out into the public spotlight once again (and by all rights, it never should have left). While there might be people who are for the death penalty, are they supportive enough that they would administer a death penalty themselves? That’s one of many considerations to take into account.
This isn’t a light subject, especially in places that are considering enacting a death penalty.
On Mak’s blog, I raised the issue of innocent people being wrongfully convicted. Under any system, this can happen. Imagine serving as an executioner and finding out a decade later that the person one killed was actually innocent. What should happen after that? Should the people involved in the wrongful conviction be prosecuted for murder? Should they be liable to suit?
That’s just with killing the wrong person. Retribution isn’t a useful justification for capital punishment because the victim or victim’s family doesn’t get to serve as executioners. The death penalty doesn’t have a proven deterrence effect on murder, so that reason isn’t a good justification. Rehabilitation is impossible for obvious reasons.
Absent any classic justification for the death penalty, should it still be used? If so, when?
I ask these questions to point out the blanket futility in a categorical denunciation of the death penalty. If one can justify killing in self-defense, then there is at least one form of killing that a state can condone. Broadly, the issues of execution are functionally no different than self-defense. Both involve a decision to kill and a public evaluation of that decision. One just takes a lot longer and carries more expense.
I’ve looked long and hard at the death penalty all my life. It was the focus of my research in law school. There, I found out that very few states and countries provide good evidence to the public regarding the death penalty. Conceptually, it gets clouded with a whole lot of cliches, platitudes, slogans, and jargon. Tired arguments get hashed and rehashed to no one’s satisfaction.
Thinking of execution as self-defense for a society might very well provide some help in discussing the death penalty. The question changes from classic criminal factors to a bigger question: is there any act which a civilized society cannot abide? Note that the question asks “cannot” instead of “should not” or “ought not.” “Abide” means something by which a society cannot exist concurrently with whatever act is being discussed. In other words, are there acts which necessarily require a society to kill the person doing them?
As societies mature, the answer very well may be that any act can be resolved through some other means than killing. Such is not a terrible thing, because it means that society has found a new way of overcoming adversity. This view implies that humanity can grow quite potent and use new tools to protect itself. That said, humanity also might face new adversity that it must meet with violence.