The surviving Boston Marathon Bomber Dzhokar Tsarnaev was sentenced to death last week by a federal jury, but defence appeals could delay the execution for more than a decade. Commentary on the sentence describes shock and disappointment in death-penalty-averse Boston, with many believing that life imprisonment would be a more fitting punishment for the young terrorist. Others have noted that having required all jurors to be “death qualified” – that is, willing to impose the death-penalty – renders the judgement unrepresentative of the people of Boston, with polls showing that only 25 percent of Bostonians believe the death penalty is ever appropriate. In Tsarnaev’s case, support for the death penalty drops to 15 percent, compared to 60 percent of Americans generally.
Regardless of how Tsarnaev’s legal case is eventually concluded, embargoes on the supply and distribution of the drugs used for lethal injection in the United States are already having an impact on death penalty practices. Utah recently approved the reintroduction of firing squads, and Alabama has authorised the use of the electric chair as a backup option, with Virginia and Tennessee also reportedly considering electrocution. Oklahoma is weighing up a return to the gas chamber, after attempts to find alternative lethal injection drugs resulted in “a bloody mess” of an execution that triggered Supreme Court intervention.
The death-penalty debate may be fiercely polarised, but the desire for a reliable and “humane” execution method that passes the Eighth Amendment’s “cruel and unusual punishment” test is not split along the same lines. Whether for or against the death-penalty in principle, in practice the method by which the death-penalty is enacted might hold some significance. As Matt Ford of The Atlantic notes:
“Lethal injection enjoyed tremendous popularity for two reasons. First, it produced an unparalleled record of seemingly painless deaths under the standard three-drug cocktail of sodium thiopental, vercuronium bromide, and potassium chloride. New drug cocktails have since negated this advantage. Second, and perhaps more importantly, lethal injection strongly resembled a medical procedure, thereby projecting our preconceived notions about modern medicine – its competence, its efficacy, and its reliability – onto the capital-punishment system. But such associations cut both ways. As states revert to earlier methods of execution – techniques once abandoned as backward and flawed – they run the risk that the death penalty itself will be seen in the same terms.”
How strongly is approval for the death-penalty associated with the ideal of a clinical, “medicalised”, and therefore humane method of execution? Some death-penalty advocates have little pity for the suffering of the condemned, but it is hard to read the horrific accounts of botched electrocutions, hangings, and lethal injections without concluding that the State and the people it represents ought at least be above the grotesqueries of largely abandoned execution methods.
Ford’s analysis touches on a controversial aspect of the Eighth Amendment: the notion of “evolving standards of decency” that has seen the U.S. Supreme Court bar the execution of mentally retarded defendants, and was likewise the basis for failed attempts to have electrocution deemed “cruel and unusual punishment” in the late 90s. The implication of the rise and fall of lethal injection is that the public have grown accustomed to the semblance of medicalised, supposedly painless executions, and will baulk at a regression to the more explicitly violent methods of the recent past.
The desire for executions to be dispassionate, direct, and restrained is not merely a function of aesthetic or visceral sensitivities, but reflects the ideal of justice as an impartial and even-handed moral force, objective both in judgement and in execution. Lethal injection lends the death-penalty allusions of clinical or surgical detachment, the reassuring calm of a benevolent medical discipline that can cut, excise, and even amputate, but all under the auspices of therapeutic intent.
In this sense, lethal injection as the preferred method of execution in the United States tells us a lot about the prevailing social and culture themes. The supremacy of the therapeutic model, the medicalization of societal and moral ills, even the medicalization of that other divisive end-of-life issue: euthanasia. How we conceive of and enact punishment provides an insight into the spirit of the present age.
Various commentators have indeed examined the technology and methods of punishment as a reflection of deeper cultural narratives. The device that came to be known as the guillotine is synonymous with the revolutionary terror in which it earned its title as France’s “national razor”. Yet the guillotine was more than just a symbol of the revolutionary government’s ardour for execution, it was, according to some, representative of the deeper themes of equality and reason that characterised the ideology of the French Revolution.
The rise of the guillotine accompanied a new conviction that the death-penalty must avoid needless pain and barbarity. The guillotine was “scientific” in the sense that it eliminated the variables hitherto associated with executions – spectacle, humiliation, torture, as well as the class distinctions that saw nobility executed via beheading with a sword or axe (a method rife with inconsistencies due to human error), while commoners were dealt the indignity of an often prolonged and painful hanging.
The employment of the guillotine in the French republic signified at least the aspiration for a surgical, egalitarian approach to execution. While it is often associated with the reign of terror that kept the machine so busy, it was at the same time part of an attempt to make the death-penalty less needlessly terrifying.
The popularity of the lethal injection likewise conveys a desire to remove the outward violence from the execution, literally putting the condemned “to sleep” with an anaesthetic, followed by a paralytic, and finally a shot of potassium chloride to stop the heart. In theory at least, the condemned person is well and truly unconscious by the time the paralysing and lethal agents are injected. In practice, opponents of the death-penalty argue it is possible – anaesthesiology being a complex discipline – that conscious yet paralysed inmates silently endure the agony of suffocation followed by the intense burn of the potassium chloride. As the physician who created the three-drug protocol admitted: “It never occurred to me when we set this up that we’d have complete idiots administering the drugs.”
From the perspective of justice the death-penalty is no longer a means of degrading, torturing, and painfully humiliating the condemned; pain and humiliation are not supposed to be a part of the sentence, nor are we comfortable with explicitly violent acts. Yet as the clinical and even therapeutic veneer of lethal injection falls away, the intrinsically violent reality of killing a human being will become increasingly unsettling to a public that has taken for granted the promise of a painless execution.
Zac Alstin is associate editor of MercatorNet. He also blogs at zacalstin.com