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JUSTICE STEVENS AND THE TECHNOLOGIESOF DEATH: WHY SOME METHODS OF

EXECUTION ARE WORSE THAN OTHERS, BUTNONE ARE BETTER

ANDREW HILLAND*

This article examines the correlation between execution methods and the general

legitimacy of the death penalty, in light of the Supreme Court's ruling in Baze v Rees. It

is argued that two historical shifts- the move of executions from the public to the

private realm and technological refinements in the machinery of death- are at odds

with the primary stated rationales of capital punishment in America, in particular those

of retribution and deterrence. The article concludes that this tension reveals a

fundamental societal ambivalence about the death penalty in America which may

ultimately lead us to accept what Bedau has described as 'Schwarzschild's Paradox':

the notion that some methods of execution are worse than others, but that none arebetter.

I. INTRODUCTION ............................................................................................. 2

II. ADVANCEMENT IN THE METHOD OF STATE KILLING............................... 3

A. The Hidden Reality: from public to private executions ................. 5

B. Perfecting the Technology of Death ................................................ 6

1. Hanging ...................................................................................... 6

2. Electrocution ............................................................................. 7

3. Gas Chamber ............................................................................. 8

4. Lethal Injection ......................................................................... 9

III. EXPLAINING THE SHIFTS HUMANE MOTIVES? .................................... 11

A. From Public to Private Executions ............................................... 11B. Perfecting the Technology of Death ............................................. 13

IV. HISTORICAL SHIFTS AND THE RATIONALES FOR CAPITAL

PUNISHMENT ........................................................................................ 16

A. Incapacitation ................................................................................. 17

B. Retribution......................................................................................18

C. Deterrence ......................................................................................22

V. EXECUTION METHODS AND THE SOCIETAL AMBIVALENCE .................. 24

VI. CONCLUSION: TOWARDS SCHWARZCHILDS PARADOX ........................ 26

* Andrew Hilland received a first class B.A in Jurisprudence from Magdalen College,

Oxford University and an L.L.M from New York University. He is currently a trainee lawyer.with Freshfields Bruckhaus Deringer LLP in London. The author would like to thank Professor

David Garland for his comments on earlier drafts of this paper.


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2 THE DARTMOUTH LAW JOURNAL Vol. VII:1

I. INTRODUCTION

InBaze v Rees, concurring in the rejection of the petitioners claim that

Kentuckys three drug lethal injection procedure violated the 8th

Amendment, Justice Alito stated: the issue presented in this case the

constitutionality of a method of execution should be kept separate from

the controversial issue of the death penalty itself. If the Court wishes to

reexamine the latter issue, it should do so directly.1The concern was that

the court should not produce a de facto ban on capital punishment by

adopting restrictive rules governing the method of execution that might

lead to a litigation gridlock. For Justice Alito, doing so would undermine

the institution of capital punishment through what was perceived to be a

back door challenge. And he was not alone in this thinking. The majority

of the justices in Baze took as their starting point the view that capital

punishment is per se constitutional, before deducing that there must

therefore be some constitutional means of carrying it out.2 Such reasoningmay in part explain why the Supreme Court has never struck down a

method of execution as illegal.3 The rigid analytical separation between the

question of the legitimacy of the death penalty generally and the legitimacy

of the method utilized to carry it out is a deep-rooted one. Abolitionists

seem to ascribe to this methodology as readily as supporters, as evidenced

by Amnesty Internationals recent report which states: Amnesty

International opposes the death penalty without reservation as a violation

of the right to life and the right not to be exposed to torture or to cruel,

inhuman or degrading treatment. The method of execution has no bearing

on this position as, in Amnesty Internationals view, the problem lies not

with the method of execution but with the punishment itself.4

In his opinion written for Baze, Justice Stevens makes a significantdeparture from this paradigm, arguing that the death penalty is no longer

constitutional due to the irreconcilability of the societal purposes of the

death penalty sanction accepted in Gregg with the death penaltys current

form.5 What is novel in Stevens Opinion is not his appeal to personal

experience as founding a conviction that the death penalty is

1 Baze v Rees 553 U.S., Justice Alito 9 (2008).2 See e.g. Justice Roberts: We begin with the principle, settled by Gregg, that capital

punishment is constitutional. See 428 U.S., at 177 (joint opinion of Stewart, Powell and

STEVENS, JJ.). It necessarily follows that there must be a means of carrying it out. Baze,Id.Roberts at 9.

3 Lower courts have done so however.4 AMNESTY INTERNATIONAL, EXECUTION BY LETHAL INJECTION: A QUARTER CENTURY OF

STATE POISONING 2 (2007) available at http://www.amnesty.org/en/library/info/ACT50/007/

2007.5 Stevens nonetheless joins in the rejection of the petition on grounds of precedent, supra

note 2 at Stevens 18.


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Winter 2009 TECHNOLOGIES OF DEATH 3

unconstitutional.6 Instead, the novelty lies in Justice Stevens explicit

initiation of correlative legal thinking between the legitimacy of the death

penalty in general and the legitimacy of method used to carry it out. More

specifically, Justice Stevens argues that the move to lethal injection as thedominant method of execution undermines the retributivist rationale for the

death penalty. His argument draws upon the counter-intuitive nature of the

primary historical shifts in execution technique in America. Why are we

reluctant to injure those who we kill? Why do we cover up and sanitize the

execution of convicted murderers?

The objective of this article is to take up and develop Stevens

challenge of questioning the correlation between the historical development

of execution methods and the fundamental legitimacy of capital

punishment in general. It will be argued that two shifts the move of

executions from the public to the private realm and technological

refinements in the machinery of death are at odds with the primary stated

rationales of capital punishment in America, in particular those ofretribution and deterrence. The paper will then conclude that this tension

reveals a fundamental societal ambivalence about the death penalty in

America which may ultimately lead us to accept what Bedau has described

as Schwarzschilds Paradox: the notion that some methods of execution

are worse than others, but that none are better.7

II. ADVANCEMENT IN THE METHOD OF STATE KILLING

Baze v Rees fiercely divided both the court and the wider populace

alike. The seven-two result was announced through seven separate

opinions, with only three Justices joining to form the plurality opinion. In

its rejection of the constitutional challenge to Kentuckys lethal injection

procedures, the court ended a seven month national moratorium on

executions and generated fervent criticism for doing so.8 Now one might be

surprised that such controversy could arise out of the mere risk that a

convicted murderer, being put to his legally sanctioned death, would suffer

some pain in the process. Yet the controversy is barely a new one in the

Anglo-American death penalty experience. To the contrary, it can be seen

as the latest phase in what Austin Sarat has described as the triumph of

progress applied to the technologies of death.9 From hanging to

6 See Justice Blackmun dissenting in Callins v Collins 510 U.S. 1141 (1994).

7 Hugo Adam Bedau, Imprisonment vs Death: Does Avoiding Schwarzschilds ParadoxLead to Sheleffs Dilemma?, 54 Albany Law Rev. 481.

8 See e.g. Gilbert King, Cruel and Unusual History, N.Y.TIMES, April 23 2008; National

Coalition to Abolish the Death Penalty, Baze Ruling Sidesteps the Critical Issues, Death Penalty

System Remains as Flawed as Ever, http://www.ncadp.org/news.cfm?articleID=212. 9 AUSTIN SARAT, WHEN THE STATE KILLS 65 (Princeton University Press) (2001).


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electrocution, from electrocution to lethal gas, from electrocution and lethal

gas to lethal injection the country has moved gradually from one

technology to another as its favored execution method. At each stage on the

journey, the reformers have denounced all previous methods as barbaricand archaic.

The point is to make what you see as uneventful as possible,

lectured C.J. Drake, the spokesperson for the Florida Department of

Corrections, shortly after that state completed its first two executions by

lethal injection.10 Drakes hypothesis is striking insofar as it embodies the

end point of a process of concealment and de-dramatization applied to

execution methods. Indeed, Lofland has persuasively argued that to

contrast English and American state executions at 1950 with those around

1700 is virtually to contrast diametrically opposed strategies of

dramaturgical concealment and openness.11 His thesis is illustrated by

reference to a range of features central to the execution experience: death

wait, confinement, time, trip, place, witness, executioner, condemned,technique, corpse disposal and death announcement. Our interest lies

primarily in the death technique, and an assessment its dramaturgic overlay

consists of nine relevant aspects: the reliability of the technique, the

temporal duration, the amount and kind of noise, the amount ofpain, the

amount and kind ofsoundif elicits from condemned, the amount and kind

of bodily mutilation, the amount of movement by the condemned, the

visibility of the condemned and the amount and kind ofodors.12

Lofland reasons that if we want to heighten the spectacular quality of

execution and in doing so make inescapably clear the existential fact that

a human being is being killed, the technique employed should be highly

unreliable and ineffective, take a long time to work, make a great deal of

noise, mutilate the body and inflict terrible pain, causing the condemned to

cry out in anguish and struggle strongly to resist- all of which actions are

highly visible to witnesses and accompanied by noxious and abundant

odors.13 Thus it follows that to recognize Drakes stated aim of making

the event as uneventful as possible, we should do exactly the opposite. It is

submitted that two broad trends in the historical development of execution

techniques reflect the move to a concealed dramaturgic overlay of state

executions: the first is the move from public to private executions,

encapsulated by Loflands visibility criteria; the second concerns the search

for a technology designed to kill without explicit injury or violence, which

10 KAUFMAN OSBORN, FROM NOOSE TO NEEDLE 179 (University of Michigan Press) (2002)(citing SARASOTA HERALD TRIBUNE, March 3, 2000).

11 John Lofland, The Dramaturgy of State Executions, in STATE EXECUTIONS VIEWED

HISTORICALLY AND SOCIOLOGICALLY, 275-325 (H. Bleackley and J. Lofland eds., 1977).12 Id. at 309.13 Id. at 310.


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implicates in particular those of Loflands criteria pertaining to the

perceived or actual pain experienced by the condemned.

A. The Hidden Reality: from public to private executions

Prior to the 1830s, executions were public events in part designed to

deter the commission of future crimes by illustrating the severe

consequences of criminal wrongdoing. They generally took place in town

squares and the location facilitated the presence of large viewing crowds.

Some 20,000 -30,000 people are reported to have attended a hanging in

Lancaster, Pennsylvania in 1822, with as many as 2000 having traveled

from surrounding counties.14 Those who attended witnessed a gruesome

spectacle, with the majority of capital offenders being strangled to death by

a noose, their bodies contorting in the air for all to see. The visual scene

was often supplemented by lectures and sermons on the importance of civilorder.15 In case people were left with any doubts, the dead bodies of the

condemned were often left on display for days and even months after

execution.

But in the 1830s the phenomenon of the public execution began to

come to an end. State legislatures started to mandate that executions be

performed inside the prison walls, and by 1845 all states in the North East

and mid-Atlantic region had made this change. Today the death penalty has

completely transformed from the dramatic spectacle that was commonplace

before the 1830s to a cool, bureaucratic operation with the role of the

public now strictly limited and tightly controlled. Witnessing an execution

is now a privilege accorded only to public officials, family members and

screened representatives of the general public. Today, capital punishment

has become something of a hidden reality. In the words of Bedau: the

relative privacy of executions nowadays (even photographs of the

condemned man dying are almost invariably strictly prohibited) means that

the average American literally does not know what is being done when the

government, in his name and presumably on his behalf, executes a

criminal.16

14 Jonathan S. Abernethy, The Methodology of Death: Re-examining the Deterrence

Rationale, 27 Colum. Hum. Rts. L. Rev. 379 (1995-1996) (citing NANCY K TEETERS, HANG BYTHE NECK 34 (1967)).

15 LOUIS P MASUR, RITES OF EXECUTION: CP AND THE TRANSFORMATION OF AMERICAN

CULTURE 1776-1865 26 (Oxford University Press) (1989).16 HUGO ADAM BEDAU, DEATH PENALTY IN AMERICA 13 (Oxford University Press) (3rd ed.

1982).


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B. Perfecting the Technology of Death

Make a good job of this

- William Kemmler, first person electrocuted in the US, 1891

Kemmlers plea, albeit a strikingly personalized one, aptly accords

with our second general historical trend in execution method: that is, the

attempt to find a technology of killing that is free from explicit injury or

violence. This trend is reflected in the acceptance and subsequent criticism

of the four principal methods of execution used in the US: hanging,

electrocution, gas chamber and lethal injection.17

1. Hanging

Prior to the 20th Century, hanging was the most common execution

method in America. In fact at the middle of 19 th century, hanging was the

near universal form of execution in the US.18 Despite its popularity as an

execution method throughout history, hanging regularly resulted in slow

and painful deaths. In the words of Gatrell, neither the introduction of the

Newgate drop in 1783 nor... . .lengthy debates a century later about the

ratios between body weight and drop ever succeeded in converting the

gallows into an efficient instrument of death. Even as recently as 1978,

Gardner pointed to a mass of evidence of bungled hangings.19 The problem

is a crude one: when the condemned is dropped too far, decapitation

results,20 yet when the condemned is dropped too short to break the neck he

or she will suffer death by strangulation. Consistently finding the middle

ground between these dire alternatives proved elusive, with Gardnerconcluding that strangulation was the rule rather than the exception.

The perception of hanging as an inefficient death method is amply

substantiated by eyewitness accounts. A former San Quentin warden, who

had witnessed in excess of sixty hangings, observed that:

the wheezing can be extremely loud, like the hysterical squealing of a

17 A fifth method, the firing squad, has long been favored by military. It has been used twice

in the US in the modern execution era: Gary Gilmore in 1977 and John Albert Taylor in 1996,both in Utah.

18 Justice Blackmun dissenting from denial of certiorari in Campbell v Wood, 511 US 1119

(1994); Deborah W. Denno, Getting to Death: Are Executions Constitutional? 82 IOWA L.R. 319,364.

19 Martin R. Gardner, Execution and Indignities- An Eighth Amendment Assessment ofMethods of Inflicting Capital Punishment, 39 OHIO ST. L.J 96, 120 (1978).

20 In January 2007 the Iraqi Government, operating under US authority, executed Barzan

Ibrahim al-Tikriti, half brother of Saddam Hussein. In a highly publicized execution designed to

show the Iraqi governments committed to western standards of justice, Mr Ibrahim wasdecapitated when dropped from gallows.


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dying pig. The victim may bob up and down like a yo-yo. It may even be

necessary for a guard to hold onto his legs so his violent churnings do not

break the rope. A poorly placed rope occasionally gouges out a chunk of

the face and head. There have been cases where the head has beencompletely ripped off.21

2. Electrocution

By 1886, the deficiencies of hangings led the 1886 New York State

Legislature to establish a commission to study and report on the most

humane and practical method known to modern science of carrying into

effect the sentence of death in capital cases.22 The report resulted in the

1888 approval of the nations first electric chair, enthusiastically described

by the New York Times as euthanasia by electricity.23 Electrocution as a

method of execution spread until the late 1920s, when over half of the then

existing death penalty states were using the electric chair to execute capitaloffenders. Again, the ostensible goal of the adoption of electrocution was to

minimize pain for the condemned. But many experts contended that even

when performed correctly, the electric current would sometimes only touch

one of the brains four parts, so the individual retained consciousness and a

keen sense of agony.24 The most notorious botched electrocution occurred

on July 8 1999, when Allen Lee Davis execution in Floridas electric chair

went awry, gathering worldwide notice and condemnation. In fact, the

Florida Supreme Courts color photographs of the executed Davis received

so many views from the several millions of viewers that the courts

computer system crashed and was disabled for months afterwards.25

Justice Brennans summary of the eyewitness accounts corroborates

that electrocutions might often constitute a painful and violent experience

for the condemned:

Witnesses routinely report that, when the switch is thrown, the

condemned prisoner cringes, leaps and fights the straps with amazing

strength. The hands turn red, then white and the cords of the neck stand

out like steel bands. The prisoners limbs, fingers, toes and face are

severely contorted. The force of the electrical current is so powerful that

the prisoners eyeballs sometimes pop out and rest on (his) cheeks. The

prisoner often defecates, urinates, and vomits blood and drool.

21 IAN GRAY AND MOIRA STANLEY, A PUNISHMENT IN SEARCH OF A CRIME 24 (1989).

22 In Re Kemmler, 136 US 436, 444 (1890).23 Quoted in Abernethy, supra note 14 at 400.24 Gardner, supra note 19 at 125-26.25 Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind

State Uses of Electrocution and Lethal Injection and What it Says About Us, 63 OHIO ST L.J at 6(2002).


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The body turns bright red as its temperature rises and the prisoners

flesh swells and his skin stretches to the point of breaking. Sometimes the

prisoner catches on fire, particularly if he perspires excessively.

Witnesses hear a loud and sustained sound like bacon frying and thesickly sweet smell of burning flesh permeates the chamber. This smell of

frying human flesh in the immediate neighborhood of the chair is

sometimes bad enough to nauseate even the Press representatives who are

present. In the meantime, the prisoner almost literally boils: the

temperature in the brain itself approaches the boiling point of water, and

when the post-electrocution autopsy is performed the liver is so hot that

doctors have said that it cannot be touched by the human hand. The body

is frequently badly burned and disfigured.26

It seems that for many of the condemned, electrocution was a

particularly gruesome form of euthanasia.

3. Gas Chamber

In response to the perceived need for a more efficient method of

execution than the electric chair was providing, some states introduced the

gas chamber as an alternative.27 Indeed, the gas chamber was widely

believed to be more humane than the electric chair, based on the notion that

it is less explicitly violent and does not mutilate the condemneds body. In

this regard, it is significant that no state has ever moved from use of lethal

gas to use of electrocution, while a plethora of states have shifted in the

reverse direction.

Typically, the gas chamber involves inhalation of cyanide by the

condemned, causing interference with enzymes in the respiratory system

that transfer oxygen from blood to cells in his body. Without oxygen, the

inmate loses consciousness and dies. Such was the early confidence in this

method of execution that the original Nevada legislation adopting it

professed that the inmate would die while asleep in his cell; but the

practice was not quite as pleasant as envisaged. Gray and Stanley have

highlighted evidence of extreme horror, pain and strangling. The eyes

pop. The skin turns purple and the victim begins to drool. It is a horrible

sight.28By 1994, a national consensus concluded that lethal gas was not

an acceptable method of execution because of the cruelty involved.29

26 Justice Brennan dissent from denial of certiorari in Glass v Louisiana, 471 US 1080, 1086-88.

27 BOWERS, LEGAL HOMICIDE 12.28 IAN GRAY AND MOIRA STANLEY, A PUNISHMENT IN SEARCH OF A CRIME 35 (1989).29 Denno, supra note 25 at 8.


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4. Lethal Injection

The idea of executing criminals by poison is as old as Socrates. It

might seem strange therefore, that the first lethal injection statute in the USdid not appear until 1977. After its late inauguration, however, execution

by lethal injection caught on rapidly. A total of 36 states have now adopted

lethal injection as the exclusive or primary means of implementing the

death penalty, making it by far the most prevalent in the country.30 In

addition, it is the Federal Governments method of choice.31 The most

common lethal injection procedure is the one adopted by Kentucky: the

three drug protocol at stake in Baze v Rees. The first drug is a sedative,

sodium thiopental, given to render the prisoner unconscious. It is then

followed by a paralytic, pancuronium bromide, which inhibits all of the

condemneds movement, including their breathing. The third and final

drug, potassium bromide, stops the heart by inducing a cardiac arrest. Each

of the three drugs, in the large dosages called for in the protocols, issufficient itself to cause the death of the prisoner.32

Ideally, lethal injection resembles a medical procedure, as the

anaesthetized patient is painlessly put to sleep. But as with the other

execution methods examined, there is substantial evidence of a significant

gap between theory and practice. Thus, if the executioners administer an

insufficient amount of the first drug or administer the drugs out of

sequence, inmates will remain conscious while their muscles are paralyzed

until death by the final toxin. Indeed the allegedly high risk of this result

occurring in Kentucky, by virtue of that states lack of effective procedures,

formed the petitioners central argument in Baze. Moreover, if the

executioner injects drugs into the muscle or the veins in the wrong

direction, the condemned will suffer intense pain before death. This latterdifficulty is said to explain why John Autry was in agony for more than ten

minutes before he died.33

The likelihood of these and other technical difficulties occurring is

vastly enhanced by the medical professions ethical prohibition against

assisting executions known as the Hippocratic Oath, reflected in the

American Medical Associations statement that An individuals opinion

on capital punishment is the personal moral decision of the individual. A

30 Baze, supra note 1 at Roberts CJ 3, FN 1.31 18 U.S.C. s3591 (2000).

32 SO LONG AS THEY DIE: LETHAL INJECTIONS IN THE UNITED STATES, HUMAN RIGHTSWATCH (2006), http://www.hrw.org/reports/2006/us0406/.

33 Julian Davis Mortenson, Earning the Right to be Retributive, 88 IOWA L.R. 1099, 1124

(2002-2003) (citing Stacey A. Ragon, Comment, A Doctors Dilemma: Resolving the Conflict

Between Physician Participation in Executions and the AMAs Code of Medical Ethics, 20 U.DAYTON L. REV. 975, 976-77 (1995)).


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physician, as a member of a profession dedicated to preserving life when

there is hope of doing so, should not be a participant in a legally

authorized execution.34 A plethora of international bodies have taken a

similar stance to the AMA in concluding that participation in executions isa breach of medical ethics, including The World Medical Association, The

World Psychiatric Association, The International Council of Nurses and

The Standing Committee of European Doctors.35

For the purposes of the Hippocratic oath, the definition of

participation is a broad one. The AMA includes as prohibited actions

monitoring vital signs, attending or observing as a physician, rendering

technical advice regarding the executions, selecting injection sites, starting

intravenous lines, prescribing, preparing, administering or supervising the

injection of drugs, inspecting or testing lethal injection devices, and

consulting with or supervising lethal injection personnel.36 The wide

ranging prohibition is not universally obeyed; some physicians ignore the

ethical guidelines and offer their help during lethal injections, free fromrepercussions. However, medical ethics is undoubtedly a strong limit on the

effective administration of the lethal injection procedure, a point recently

illustrated by Californias inability to find to find anesthesiologists to

participate in the execution of Michael Morales.37 This particular inmate

was fortunate, insofar as a federal court order precluded the execution from

being carried out in the absence of medical professionals; many other

condemned are put to death by an execution team lacking any personnel

trained in anesthesia.

As with other execution methods, eyewitness reports contradict

characterizations of lethal injection as uneventful:

In 1992 State of Oklahoma executed Robyn Lee Parks by lethal

injection. Observers witnessed gruesome scene. Movements after

executioners administered the drugs. . .. . .. . ...Parks gasped and violently

gagged. His head jerked toward his right shoulder. . ..Muscles in his jaw,

neck and abdomen began to contract spasmodically for approximately 45

seconds. . ...The rhythmic jaw clenching returned for a few seconds. . ...

Less than two minutes after (the execution began) Parks body began

bucking under straps that held him to a gurney. He spewed out all the air

in his lungs, spraying a cloud of spit. . .The death looked scary and ugly. .

...Several times, Parks groaned and turned his head back and forth his eyes

tightly shut. A vein on the left side of his neck stood out thickly.

34 Quoted in Federman and Holmes, Caring to Death: Health Care Professionals and CapitalPunishment, Punishment & Society Issue 2, 441 at 448 (2000). The position statements of theAmerican Nurses Association and the International Council of Nurses are similar.

35 Amnesty International Report, supra note 4 at 20-21.36 Human Rights Watch Report, supra note 32.37 Baze supra note 1 at Alito 3.


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It looked painful and inhumane.38

More succinctly, one frequent witness to lethal injections asserted, in

the final analysis, it looks disgusting, the inmates routinely choke, cough,

spasm and writhe as they die.39

In Baze, the petitioners offered a solution to the flaws of the currently

favored procedure, advocating a move to a lethal injection consisting of a

single dose of sodium thiopental or other barbiturate. 40 The Supreme Court

rejected this proposal, noting that insufficient evidence had been advanced

to substantiate the petitioners claim that the single dose formula was an

improvement. It is clear that controversy over the technologies of death is

set to continue.

III. EXPLAINING THE SHIFTS HUMANE MOTIVES?

The dual transformations described the movement from public to

private executions and the refinement of the execution method conformto Loflands dramaturgy of concealment insofar as they increasingly

obscure the fact that a human is being killed. But Lofland is keen to

distinguish the dramaturgy of concealment from the concept of

humaneness, stressing that the dramaturgic overlay thesis deals with the

function and consequences, not the causes, of social arrangements.

Thus if Loflands analysis tells us how executions in America are

becoming a non-event, we might ask why? It is easy to see the dual shifts

solely in terms of humaneness: respectively geared at protecting the dignity

of the condemned and reducing the pain he would feel. However, a proper

account of the developments must recognize the influence of a plethora of

motivations and forces.

A. From Public to Private Executions

In his discussion of the Act to Provide for Carrying out of Capital

Punishment in Prisons 1868 in England, Gatrell cogently argues that the

move from public to private executions was civilizing and sanitized, but

contrary to the assertions of MPs and historians, not humane.41 In fact the

urgent explanation for the abolition of public executions lay in concerns of

public order, with the Home Secretary who introduced the Bill in 1868

pointing away from noose violence towards that of the crowd.42 Gatrell,

38 Mortenson supra note 33 at 1101.39 Megan S. Skelton,Lethal Injection in the Wake of Fierro v Gomez, 19 T. JEFFERSON L.R. 1

at 30 (1997).40 Baze v Rees Brief for Petitioners 51-7.41 V.A.C GATRELL, THE HANGING TREE 589-611 (Oxford University Press) (1994).42 A similar desire to quell the misbehavior of large crowds motivated the shift in the US, see


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however, provides a broader analysis of the shift as rooted in aesthetics,

aimed at appeasing the squeamish culture generated by a long-term

process of social sanitization.43 To evidence his theory, Gatrell cites John

Stuart Mills view that the spectacle, and even the very idea of pain, iskept more and more out of sight of those classes who enjoy in their fullness

the benefits of civilization.44 On this construction, the shift from public to

private executions was motivated not out of sympathy for the condemned,

but rather by the sensibilities of an elite class of the public.

Such an account of the advent of the hidden execution accords with

Elias theory of the civilizing process, an explanatory account linking

developments in Western sensibility and psychology to wider changes in

social organization and modes of interaction.45 One of the defining features

of this process Elias identifies is privatization, whereby certain aspects of

life disappear from the public area and are hidden behind the scenes of

social life. The civilizing process may redeploy, sanitize, and camouflage

disciplinary and other violence without necessarily diminishing it. ThusElias theory is not a Whiggish narrative of moral improvement; despite his

unfortunate use of the term civilizing with all its semantic baggage, he

does not seek to determine whether the change is better or worse. Instead

his civilizing process reflects Foucaults account of humanitarian penal

reform which portrays the new prisons system as a different configuration

of power, rather than as more lenient or morally superior to their

predecessors.46

By placing capital punishment behind closed doors, Parliament

defended the polite Victorian elites representation of their own civility by

silencing plebeian mockery of that representation. 47 Gatrell concludes

that in doing so, Parliament ensured the very continuance of capital

punishment in England. The instrumental significance of the shift

highlights that the placement and retention of executions behind closed

doors served the political aims of capital punishment supporters bent on

preserving the institution in any form. In this respect, a modern parallel to

the 1868 Act lies in the resistance to efforts to televise executions, on the

basis that invisible and supposedly painless executions are designed to

Abernethy supra note 14 at 491 (citing WILLIAM J. BOWERS, EXECUTIONS IN AMERICA 5

(1974)).43 Gatrell, supra note 41 at 596.44 Id. at 596 citing JS Mill, Civilization (1836) in ROBSON (EDS) COLLECTED WORKS XVIII:

ESSAYS ON POLITICS AND SOCIETY 130-1 (Toronto) (1977).45 NORBERT ELIAS, THE CIVILIZING PROCESS, I. THE HISTORY OF MANNERS (OXFORD,

1978) (1939).46 DAVID GARLAND, PUNISHMENT AND MODERN SOCIETY 223 (OXFORD UNIVERSITY

PRESS 1990) (1993).47 Gatrell supra note 41 at 610.


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make them more palatable. Out of sight, out of mind.48

B. Perfecting the Technology of Death

To account for the historical shift in the execution techniques

employed in America, we must similarly look beyond the concept of

humaneness. Certainly, if a humanitarian concern for individual pain and

suffering were the only issue at stake, we might expect the widespread use

of the guillotine, which remains the gold standard for the instantaneous

death.49 To quote Dr Guillotin himself: the Device strikes like lightning;

the head flies, blood spouts, the man has ceased to live.Of course some

have been more explicit than others in their refutation of the relevance of

humanitarian concerns. When questioned about the adoption of the states

lethal injection procedures, an official from the Tennessee Department of

Corrections is reported to have replied, We didnt discuss pain and

suffering.50As with the transition from public to private executions, concerns of

aesthetics have featured prominently. The distress for viewers of execution

by lethal gas led to discontent with the gas chamber and spurred Arizonas

conversion to lethal injection. Indeed, some witnesses suffered a period of

insomnia and illness afterwards while others describe themselves as

rendered walking vegetables for days. Even the state attorney, a major

proponent of the death penalty admitted to feeling revulsion.51 A similar

concern for the aesthetics of the execution surfaced in Baze v Rees,

following the state trial courts finding that the second drug prevents

involuntary movements during unconsciousness that may accompany the

injection of the potassium chloride. In rejecting the petitioners arguments

that this drug was superfluous and the one drug protocol a suitable

replacement, Justice Roberts reasoned that the commonwealth has a valid

interest in preserving the dignity of the procedure, especially where

convulsions or seizures could be perceived as signs of consciousness or

distress.52 This reference to the dignity of the procedure, contrasted with

the dignity of the individual, catered to the interests that the witnesses and

the executioners have in an execution that is relatively quick and appears

painless. Alper has argued that prison officials are enamored with

pancuronium bromide, because it ensures every execution looks peaceful

48 Abernethy supra note 14 at 394 (citing Christopher Johns, Televising the Judicial Murder

of People, ARIZONA REPUBLIC, July 31, 1994).49 Although a humanitarian might nonetheless be upset by the explicit violence of the

guillotine in its desecration of the body.50 Human Rights Watch Report, supra note 32.51 Abernethy, supra note 14 at 413.52 Baze supra note 1 at Roberts 18.


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and dignified, regardless of whether that is actually the case. 53 Given the

gravity of the decision to kill, it may seem perverse and absurd to agonize

over questions of decorum and presentation, but it is a fact of political life

that these cosmetic aspects of penalty have been crucial in legitimatingmodern judicial killing.54

Developments in the technologies of execution are also partly

attributable to constitutional decisions by the courts. We have already seen

that the Supreme Court has never invalidated a states chosen procedure for

carrying out sentence of death as infliction of cruel and unusual

punishment.55 However, the courts decision in Kemmler marked an

important transformation in its 8th Amendment jurisprudence on the

execution method, as previously the Court had interpreted the Cruel and

Unusual Punishment Clause with static historicism, refusing to bar any

form of punishment not contemplated by 1689 English Bill of Rights, on

which the 8th Amendment is modeled. In Wilkerson v Utah, for example,

the court upheld the constitutionality of firing squads.56 Subsequent casesreaffirmed followed Kemmlers rejection of this strictly originalist

approach in favor of a pain evaluation standard. The Courts 8th

Amendment analysis has since included a dynamic component based on

contemporary norms, including a specific ban on any method of execution

that causes a lingering death rather than simple extinguishment of life.57

Writing on the post-Kemmler jurisprudence, Mortensen has identified

two schools into which lower court decisions on the method of execution

can be categorized: the conservative schoolwhich has largely downplayed

the issue of actual pain, by deferring to legislative judgment and comparing

challenged execution methods to historically accepted methods and

contemporary legislative norms; and the minority empirical schoolwhich

has analyzed empirical evidence against a negligible pain standard,

focusing on the pain caused by the challenged execution method and the

risk of botching the execution under that method. 58

It is the empirical approach that has influenced changes in states

execution method. In some cases the court directly mandates the change;

thus the Georgia SC inDawson ruled 4-3 that the state could no longer use

electrocution, explaining that the methods specter of excruciating pain

53 Ty Alper, What Do Lawyers Know About Lethal Injection, 1 Harv. L & Poly Rev.

(Online) (March 4, 2008), http://www.hlpronline.com at 2. See also Counsel for the State of

Kentucky, during Baze oral argument, justifying the use of the paralytic on ground that it doesbring about a more dignified death, dignified for the inmate, dignified for the

witnesses(emphasis added).54 Garland supra note 46 at 244.55 Baze, supra note 1 at Roberts 9.56 Mortensen supra note 33 at 1108.57 Id. at 1109 (citing Francis v Resweber, 329 U.S. 459, 474 (1947)).58 Id. at 1107.


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and its certainty of cooked brains constitutes cruel and unusual

punishment under the 8th Amendment. To reach this result, the Court

focused on the purposeless physical violence and needless mutilation that

characterize electrocution.59

In other cases, however, the legal influence is indirect, with state

legislatures voluntarily refining their method once a successful challenge

begins to mount. In Bryan v Moore, for example, the Supreme Court

dismissed a challenge to Floridas electric chair as moot after the Florida

legislature adopted lethal injection as an alternative.60 Denno has argued

that this is by no means an isolated case, but instead forms part of a

systematic effort on behalf of states to change to execution method

whenever it seems likely that the current method is constitutionally

vulnerable. Rejecting the common insistence of legislatures that they are

striving for greater humaneness, Denno contends that changes in the

method of execution are promoted primarily because the death penalty

itself became constitutionally jeopardized through a legal challenge.61Dennos emphasis on the prevalence of political rather than

humanitarian influences, may help to explain the lack of thought that went

into the adoption of the currently favored lethal injection protocol. The

three-drug procedure was developed in 1977 in Oklahoma by a medical

examiner named Jay Chapman, who stated that he was an expert in dead

bodies but not an expert in getting them that way.62 Despite Chapmans

lack of expertise, the other states followed Oklahomas lead, seemingly

determined not to be seen as trailing behind in the ongoing refinement of

execution method. Indeed, the lack of thought put into the procedure was

actually embarrassing in Tennessee: the local media disclosed that the

lethal injection process in use was essentially the protocol for the electric

chair with lethal injection cut and pasted over the references to

electrocution.63

Those who favor the continued acceptance of the death penalty will

often be willing to compromise the method of their choice in order to

perpetuate the system. Insofar as hanging had become negatively

associated with lynching and summary justice by 1886, the New York State

Commissions recommendation to replace it with electrocution might be

perceived in this light. An even more pragmatic set of factors which have

undoubtedly had a bearing in the decisions to switch execution methods are

economic. The move to an acceptance of lethal injection post- Furman was

59 Denno, supra note 25 at 9.60 Mortensen, supra note 33 at 1110. The same occurred in California.61 Denno, supra note 25.62 Alper supra note 53 at 1.63 Id. at 5.


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partially attributable to the fact that a 10 year hiatus on executions meant

the electric chairs had fallen into disrepair. As the cost to fix them would

have been substantial, lethal injection presented itself as a cheap

alternative, with the North Carolina Department of Corrections calculatingthe cost at only $346.51 per person.64

However, we should not rule out the suggestion that genuine concerns

about alleviating the pain felt by the victim have also had some role to play.

There has, after all, been an extensive appeal to the idea of humaneness in

the public discourse. Thus the sponsors of the Oklahoma lethal injection

statute stressed the need to eliminate the cruelty and inhumanity of

electrocution. 65 And at the time of Californias adoption of lethal

injection in 1992, Assemblyman McClintock stated a conviction that lethal

injection was the only form of execution which from our own lifes

experience, we can conclude is entirely devoid of discomfort. He

continued that no one knows for sure whether a prisoner suffers in the gas

chamber. . ..With lethal injection, we know exactly what the person is goingthrough because its exactly what someone undergoing surgery

experiences.66 We have already seen that similar appeals to the concept of

humaneness have accompanied each shift in method. While we need not

take these statements at face value, given they are made by democratically

accountable politicians, it seems overly cynical to deny them any

significance.

IV. HISTORICAL SHIFTS AND THE RATIONALES FOR CAPITAL PUNISHMENT

In his plurality opinion in Baze, CJ Roberts argued that the fact that

society has moved to progressively more humane methods of execution

does not suggest that capital punishment itself no longer serves valid

purposes; we would not have supposed that the case for capital punishment

was stronger when it was imposed predominantly by hanging or

electrocution. 67 Indeed, insofar as Justice Stevens opinion rests on the

presupposition that the death penalty now has no retributive value, and

cannot deter potential future offenders, it should be rejected. The point is

made aptly by Justice Scalia, who dismisses Stevens reasoning on the

retribution rationale as amounting to a claim that if a punishment is not

retributive enough, it is not retributive at all. To state this proposition is to

64 STUART BANNER, THE DEATH PENALTY; AN AMERICAN HISTORY 297 (HarvardUniversity Press) (2003).

65 Abernethy supra note 14 at 409, citing newspaper articles at the time of the

pronouncement.66 Quoted in Abernathy, id. at 417.67 Baze, supra note 2 at CJ Roberts 24, n 7.


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refute it.68

It is suggested, however, that the dual developments outlined in this

paper- the move from public to private executions and the refinement of the

technologies of death- while not defeating these objectives entirely, doundermine the effectiveness of execution as a means of achieving them.

This is especially true to the extent that the move to conceal and de-

dramatize executions has been motivated by considerations of aesthetics, a

civilizing process or humaneness, as opposed to purely political and

economic factors.

Justice Stevens recalled that the rationales said to justify the continued

imposition of capital punishment in Gregg are threefold: incapacitation,

deterrence and retribution. These justifications will now be examined in

turn.

A. Incapacitation

The dual historical shifts outlined are arguably entirely consistent with

the incapacitation rationale for the death penalty. Indeed, an execution will

incapacitate the offender regardless of the method utilized and the social

domain in which it is carried out.69 Yet it is submitted that incapacitation is

no longer a necessary or sufficient justification for the death penalty. This

is because 48 states now have some form of provision for life

imprisonment without parole, with the majority of these states having made

the switch within the last two decades.70 The recent rise in statutes

providing for life in prison without the possibility of parole leaves

incapacitation with no marginal value in explaining why we would adopt

capital punishment as opposed to this other form of punishment. One might

counter this assertion by pointing out that murderers sentenced to life

imprisonment sometimes kill again in prison; while dead murders

obviously do not. However this argument appears to be an attempt to

legitimize state killing through an appeal to state negligence; the fact that

governmental officials fail to maintain adequate control over inmates

cannot constitute the requisite basis upon which to grant the state an even

greater power over the individual.

It is instructive that abolitionists joined the pro-incarceration activists

and legislators to push through the life without parole statutes.71 The

abolitionists interest in supporting such enactments is clear; a recent poll

68 Id. at Scalia 5.69 Francis supra note 57, even if it takes two attempts.70 Baze supra note 1 at Stevens 9, FN 10.71 Note,A Matter of Life and Death; The Effect of Life- Without- Parole Statutes on Capital

Punishment, 119 HARVARD L.R 1838, 1838-9.


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indicates that support for the death penalty drops significantly when life

without possibility of parole presented as alternative option.72 Furthermore,

available sociological evidence suggests juries are less likely to impose the

death penalty when life without parole is available as a sentence, aconsideration that drove the Supreme Court to decide in Simmons that

capital defendants have a due process right to require that their sentencing

juries be informed of their ineligibility for parole.73

It is submitted that the advent of life without parole statutes has

defeated the force of incapacitation as a rationale for imposing the death

penalty. We are thus left with two of the Gregg justifications for the

continued imposition of the death penalty that are to be assessed in light of

the shift in the methods of execution. These rationales correspond to the

two main types of death penalty defenders- retributivists and

consequentialists.74

B. Retribution

Justice Stevens observed inBaze that retribution animates much of the

remaining enthusiasm for the death penalty. To flesh out this rationale, he

cites Lord Justice Denning, who in 1950 stated that some crimes are so

outrageous that society insists on adequate punishment, because the

wrong-doer deserves it, irrespective of whether it is a deterrent or not.75

At the same time however, Stevens comments that retribution satiates the

thirst for vengeance, a natural response to the most of heinous of crimes. 76

It is important to appreciate the distinction between these two concepts.

An illustration of the latter, vengeance was reflected in the aftermath

of Timothy McVeighs sentence when the media captured the views of a

range of individuals that were personally affected by the Oklahoma

bombing on how McVeigh should be dealt with. Arlene Blanchard, a

survivor of the bombing, explained after McVeighs death sentence was

handed down that death by injection is too good for McVeigh. She said

he should be put in solitary confinement for life or simply hanged from a

tree. I know it sounds uncivilized, but I want him to experience just a little

of the pain and torture that he has put us through. Meanwhile, William

Baay, an emergency worker who helped remove bodies from the Murrah

Building, was more graphic: I dont think conventional methods should be

used. They should amputate his legs with no anesthesia. . .and then set him

72 Baze supra note 1 at Stevens 9, FN 11.73 Id. at Stevens 9, FN 12.74 Sunstein and Vermeule, Is Capital Punishment Morally Required?, 58 STANFORD L.R.,

ISS. 3, 703 (2005).75 Baze, supra note 1 at Stevens 10.76 Id. at Stevens 11, FN 15.


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over a bunch of bamboo shoots and let them grow up into him until hes

dead.77 Similar vengeful sentiments were expressed by the mother of a

murder victim, who, after learning about the particulars of a lethal injection

execution, asked: Do they feel anything? Do they hurt? Is there any pain?Very humane compared to what theyve done to our children.78

Of course, not all relatives and survivors support the brutal execution

of murderers as a means of assuaging their grievances. The academic

equation of the acceptance of victim impact statements in Payne with the

return of revenge illustrates that these views dominate sentiments among

this class of the populace.79 Moreover, such desires are not confined to

victims but are reflected throughout society: by the late night parties

thrown by college students in Huntsville and the widespread circulation via

the Internet of images of a bloodied Allen Lee Davis following his botched

electrocution. For Lynch, these feelings represent the effective underside

of punishment, most often expressed in the populist desire for the

execution to mean something more than a simple elimination process, evenif that desire is rooted in feelings of blood lust and vengeance.80

Thus, the call for vengeance is a call for the death penalty to be as

much of an event as possible. In stark contrast to the trends towards privacy

and the search for a painless technique of death, vengeance demands

maximum display and maximum and pain. In the 21 st Century, perhaps

only countries such as Iran and Saudi Arabia, who continue to purposefully

inflict suffering through especially cruel methods of punishment, such as

stoning, can satiate these demands. Iranian law prescribes that in

punishment of stoning to death, the stones should not be so large that the

person dies on being hit by one or two of them, nor should they be so small

that they could not be defined as stones.81 Of course, it is as undesirable

as it is unlikely that America would return to such practices; the Western

World has long since dismissed them as barbaric. It should, however, be

recognized that the call for violent revenge, particularly when it takes an

impassioned plea from a relative of a murder victim, is something we

empathize with, even encourage. Sarat illustrates the point by reference to

the second presidential debate in 1988, when Bernard Shaw asked Michael

Dukakis what he would do if someone raped and murdered his wife, Kitty.

Dukakis responded by saying, Bernie, you know that Im against the death

penalty and swiftly changed the subject. Dukakis was hounded in the

77 Quoted in Sarat, supra note 9 at 64.

78 Id. at 53.79 Id. at Chapter 2.80 Osborn supra note 11 at 210 (citing Mona Lynch , The Disposal of Inmate #85271: Notes

on a Routine Execution in Studies In Law, Politics and Society Vol 20, 25-26 (Sarat and Ewick

eds, 2000).81 Amnesty Report, supra note 4 at 1.


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media for this seemingly emotionless, almost inhuman response, and Sarat

suggests an altogether more acceptable one:

Of course, I would want anyone who did such a thing to someone I

loved to be made to suffer. Indeed, if I got my hands on him Id tear himlimb to limb. But the death penalty is something different. What my love

and anger propels me to do is not what our government should do. It

should help heal my pain, but also find ways to punish that do more than

exact the most primitive kind of vengeance.82

It is precisely this need to separate private desire from public justice

that explains why we condemn a response such as Dukakis, yet at the

same time reject the methods of death penalty prevalent in Iran. This

distinction explains the laws denial of vengeance as a legitimate basis for

the death penalty; relying instead on the more legitimate notion of

retribution.

The effort to distance revenge from retribution, to discourage the

former while legitimating latter, has an illustrious history in political andlegal thought. While the vengeful voice to meet brutality with brutality is

portrayed as savage, wild and limitless, retribution is seen as an altogether

more legalistic concept, with its advertised virtues of measured

proportionality, detachment and consistency. While both stem from a

common desire to inflict pain on the source of pain, revenge may be

limitless and misdirected at the undeserving, as with collective punishment.

Retribution, on the other hand, must be limited and proportional no more

or less than what is deserved, objectively determined. As a categorical

moral imperative for affirming the death penalty, retribution is said to

provide the basis upon which the death penalty is both affirmed and

limited.83

Ardent death penalty supporter Robert Blecker explains that the basic

retributive measure is like for like, or payback, rooted in the biblical

precept as he has done, so shall it be done to him (Leviticus 24). By

Kants classic retributivism, we impose punishment as abstract duty

without any emotion. The murderer must die, but should not suffer

maltreatment. On this conception, the trends towards a private and

purportedly painless execution are perfectly reconcilable with the dictates

of retribution: the taking of the condemneds life is sufficient without more.

Yet as Blecker argues, classic retributivism has given way to the more

persistent and popular intuitive retributivism,championed byAdam Smith

in A Theory of Moral Sentiments (1759).84 Embracing human dignity as

82 Sarat, supra note 9 at 248.83 See the concept of proportionality acting as a limit on capital punishment in the Supreme

Court decisions in Coker,Enmund, Ford,Atkins, andRoper.84 Robert Blecker,But Did They Listen? The NJ DP Commissions Exercise in Abolitionism:


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primary value, emotive retributivists since Adam Smith emphasize that

every moral question is ultimately an emotional one and unwarranted

mercy to guilty should be perceived as cruelty to the innocent.Thus our retributive paradigm is one of equivalency , which aims to

exact proportionate, general, and objective punishment without abandoning

appeals to emotion. The move towards a relatively private and painless

method of killing, embodied by the current preference for lethal injection,

stands in tension with emotive retributivism. As Justice Scalia has

highlighted, the quiet death caused by lethal is enviable and even

desirable when compared to the suffering by most homicide victims.85

Execution by lethal injection cannot satisfy the sense of equivalence said to

inform emotive retributivism, quite simply because it represents an attempt

to kill, but only kill, the condemned.One response to this argument is to take theAlbert Camus line that a

man is undone by waiting for capital punishment well before he dies. Two

deaths are inflicted on him, the first being worse than the second, whereashe killed but once.86 Can we find the retributive demands of equivalency

be satisfied by the two deaths inflicted upon the condemned? It is

undeniable that for many death row inmates, waiting to die is a torturous

experience.87 However, we should not forget that those condemned to death

by the state are often guilty of multiple killings, invariably inflicted in a

gruesome manner. Insofar as the shift towards lethal injection enables the

condemned to be put to death in conditions akin to a hospital ward, we

should reject the notion that the historical shifts outlined are reconcilable

with intuitive retribution.

Furthermore, if the notions of equivalency and proportionality inform

the retributive rationale underlying the institution of capital punishment, we

might question why capital punishment is no longer tempered to suit the

criminal in question. Historically, those criminals who had perpetrated the

most heinous of offences- such as Damienss attempt to kill the sovereign-

would be subjected to an aggravated form of execution, while those guilty

of a lesser offence were afforded the luxury of a comparatively swift and

painless death. The abandonment of differential treatment of those

sentenced to death, is difficult to square with an acceptance of intuitive

retributivism as the justification for capital punishment. By requiring a

painless execution, we necessarily protect the inmate from enduring any

A Detailed Reply (July 23 2007) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=

1002434. This conception is also favored by leading death penalty proponent Ernest Van DenHaag.

85 Callins, supra note 6 at 1142.86 ALBERT CAMUS, RESISTANCE, REBELLION AND DEATH 175 (1960).87 ROBERT JOHNSON, DEATH WORK: A STUDY OF THE MODERN EXECUTION PROCESS,

PART III (Pacific Grove California) (1990).


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punishment that is comparable to the suffering inflicted on his victim.

All this is not to say that the current form of execution has no

retributive value whatsoever: taking the life of a murderer is in itself

retributive. The point is that the historical process towards the concealmentand de-dramatization of the execution not only distances state killing from

the widespread societal demand for vengeance; it also pulls against an

effective realization of the retributive rationales demands.

C. Deterrence

Of the rationales relied on in Gregg to justify the continued imposition

of capital punishment, we are left with deterrence. Unlike retribution,

deterrence is not presented as an absolute moral imperative of justice, but

instead as an important instrumental goal. In fact, such illustrious names as

Bentham, Eden, and Blackstone viewed the immediate end of punishment

as being to deter future crime. It would, of course, be highly unjust topunish any person merely to deter others; however the deterrence effect of

just punishment is morally justifiable since the convict volunteered by

risking the punishment with deterrent effects. Koestler has described

deterrence as the jack in the box rationale in the capital punishment

context, on the basis that despite countless empirical studies rejecting the

notion that the death penalty actually deters people, the doctrine keeps on

reappearing. Its persistent attraction may well lie in the fact that it appears

to provide a scientific and socially acceptable reason in support of the

death penalty.88 This paper is not concerned with the statistical issue of

whether or not the death penalty can be proved to deter people from

committing murder; but rather with the theoretical inconsistency between a

reliance on the deterrence justification as underpinning the death penalty,

and the dual historical shifts pertaining to the means of state execution

which have been outlined. Again, it should be emphasized that it is not my

contention that the current form of execution leaves the deterrence rationale

for the death penalty completely defunct. Insofar as a potential murderer is

deterred by capital punishment at all, the deterrence might simply lie in the

fact that he will die for his actions, and not that he will die by any particular

method. Yet especially to the extent that they were motivated by

considerations of humaneness, aesthetics or the civilizing process, it is

contended that the dual historical shifts detailed above stand in tension with

the deterrence theory.

Abernathy has described the relevant form of deterrence in thiscontext as marginal general deterrence the marginal aspect directs

our attention to the extent to which the death penalty can be said to deter

88 Abernethy, supra note 14 at 423.


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more effectively than life imprisonment, while the general element

focuses discussion on the inhibiting effect of the sanction on the criminal

activity of people other than the sanctioned offender.89 There are two

popular conceptions. The first, cost benefit deterrence, assumes arationalistic perspective in which human behavior is a function of

individually perceived costs and benefits of alternative choices or actions.

This conception presupposes that the potential killer rationally decides

whether or not to kill after considering the costs derived from the certainty

and severity of punishment. But, as Professor Van den Haag asserts, few

people calculate in the criminal context at all. Rational thought may be

particularly absent in the realm of murder, by and large a crime of passion

with no rational thought preceding it.90 Thus we might be moved to favor a

second manifestation of deterrence, preconscious fear deterrence. On this

theory, people will refrain from actions that have harmful consequences not

because they explicitly calculate and weigh the probabilities of harm but

because of their preconscious fears of the risks associated with acontemplated action. In the words of Van Den Haag, preconscious fear

deterrence is predicated on the possibility of reinforcing internal controls

by vicarious external experiences. It is essentially a theory of

subconscious habit formation.

How do these two conceptions of deterrence square with the dual

historical shifts in the methodology of executions? The first shift, the

privatization of executions, stands in tension with both. Under the cost

benefit deterrence theory, one can argue that our hypothetical, rational,

calculating murderer would prefer to be executed in private than in public,

so spare himself from the humiliation of the angry and jeering crowd. Of

course we must admit of exceptions to this generalization, in part because

murderers tend to defy our conception of rationality. So Peter Robinson,

executed in 1841loved the fleeting and macabre publicity he received. ..at the scaffold.91 But we can safely take Robinson to represent the

exception, rather than the rule. The preconscious fear conception of

deterrence on the other hand, depends on the effective communication of

threats of punishment and their concrete exemplifications to the public.92

While it might be suggested that the mystery and indefiniteness of a private

execution could effectively deter through a fear of the unknown (if

potential murderer had a vague sense that executions occurred but the rest

was left to his imagination), this cannot overcome the fact that private and

89 Id. at 382.90 Bowers, supra note 27 at 272.91 Abernethy, supra note 14 at 389 (citing MICHAEL KRONENWETTER, CAPITAL

PUNISHMENT: A REFERENCE HANDBOOK 50 (1993)).92 ZIMRING AND HAWKINS, DETERRENCE AND INCAPACITATION 141-42.


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underpublicized executions cannot reinforce an individuals internal

controls in the same way that an exposure to public executions can.

It is further submitted that the second shift- towards an increasingly

painless method of execution- is equally at odds with both conceptions ofthe deterrence rationale. Under cost benefit deterrence, our rational,

calculating potential killer would presumably be less deterred by a lethal

injection that a hanging. And under the preconscious fear conception,

meanwhile, the widespread publication of statements on the humane

quality of a newly adopted technology would undoubtedly loosen the

potential murderers internal inhibitions against murder. The comments of

Florida Attorney General Robert Butterworth in the aftermath of a

malfunction during an electrocution that caused a fire encapsulate the fact

that it is the threat ofpainfuldeath that is likely to deter potential criminals:

People who wish to commit murder, they better not do it in the state of

Florida because we may have a have a problem with our electric chair.93

V. EXECUTION METHODS AND THE SOCIETAL AMBIVALENCE

It has been argued that the shifts towards an increasingly private and

painless method of execution have not only distanced the institution of

capital punishment from the popular thirst for revenge, but are also difficult

to reconcile with the very justifications upon which state killing has been

held to rest. From this discrepancy, we can discern a fundamental societal

ambivalence about imposition of the death penalty. As Douglas McDonald,

a Massachusetts research sociologist explains: Society is at war with itself.

They want to execute people, but they also want to insulate themselves from

the horror of it as much as possible.94 The shift towards private

executions, which have enabled the general public to adopt an out of sight,

out of mind (almost willful ignorance) philosophy to capital punishment,

reflects McDonalds thesis. The institutional and individual abdication of

responsibility for the death penalty by the criminal system also

encapsulates the societal ambivalence Indeed, Markus Dubber stresses that

participants in death penalty procedures shift the moral focus of

punishment in order to minimize their sense of justice, and John Bessler

concludes that the multi-layered process has become so complex that no

one in the entire criminal justice system is now fully accountable for death

sentences.95With the advent of the highly sanitized and medicalized lethal

injection execution method, Foucaults insight that justice no longer takes

responsibility for the violence that is bound up with its practice resonates

93 Sarat, supra note 9 at 63.94 Abernethy, supra note 14 at 422-3.95 Federman and Holmes, supra note 34 at 446.


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powerfully.96

This is not to say that the pervasive abdication of responsibility for

executions has been unnecessary. On one view, only the lethal injection is a

sufficiently unique method of execution to sustain the states categoricaldistinction between state killings and criminal homicides.97 Yet it is

contended that the very success of the lethal injection in this regard is also

the cause of its failure. Recourse to the work of Foucault can elucidate the

point. While absolutist regimes of early modern Europe sought to secure

the sovereigns territorial grip through irregular but awesome displays of

might, their modern liberal counterparts endeavored to govern populations

on a continuous rather than an exceptional basis, aiming to maximize their

nations well being, either in terms of aggregate wealth or collective health.

Foucault suggests that these three orders- sovereignty, anatomo-politics and

bio-politics- now coexist in field of governmentality. The question we

must ask today therefore, is whether the lethal injection can successfully

participate in constituting sort of state that can credibly present itself asinstitutional complex whose sovereign pretenses are not seriously eroded

by the twin forces of governmentalization and globalization.98 It is

submitted that the answer must be a negative one. Indeed, it will be recalled

that Foucaults description of the torture and execution of Damiens,

described in opening pages of Discipline and Punish(1979) illustrates that

the substantiation of sovereign authority requires a palpable and graphic

demonstration of the utter vulnerability of the human body.99 Contrast the

fate of Damiens with modern executions: punishment is no longer harsh

and terrifying, but peaceful and benign. The use of health care personnel by

states in the lethal injection procedure is designed to alleviate the pain of

death or at least to offer illusion of alleviating pain. Even greater

significance attaches to the agent of welfare, symbolically, as they stand

to represent the care of the state for its citizens.100 In factstate killings are

now such deeply privatized, sanitized and medicalized affairs as to be

literally and symbolically unobservable,101 aptly characterized by

Zimring and Hawkins as a non event.102 By rendering execution a non-

event, the state has rendered it pointless.

96 MICHEL FOUCAULT, DISCIPLINE AND PUNISH. 9 (Trans. Alan Sheridan) (1979).

97 Sarat, supra note 9 at Chapter 3.98 Osborne supra note 10 at 212.99 Foucault supra note 96.

100 Federman and Holmes, supra note 34 at 446.101 Denno, supra note 25 at 23.102 Federman and Holmes, supra note 34 at 447.


26/26



VI. CONCLUSION: TOWARDS SCHWARZCHILDS PARADOX

It has been argued that the discrepancy between the historical

developments in execution method and the stated rationales for capitalpunishment generally, elucidates a fundamental societal ambivalence about

the death penalty. I have further sought to illustrate that this ambivalence

can be understood through the writings of Foucault. But to conclude the

challenge of taking up Justice Stevens conviction that Baze can generate

debate not only about the constitutionality of the three-drug protocol, but

also about the justification of the death penalty itself, a constitutional

footing for the preceding analysis will be advanced.103

Critics of the abolitionist movement have contended, with some

plausibility, that the last new argument against the death penalty may

have been made by Cesare di Becaria in 1764.104 In When the State Kills

however, Austin Sarat seeks to break the mould, exhorting us to move

beyond the conventional moral argument and policy debate. To do so, heargues, we must ask what role capital punishment has played and continues

to play in fashioning the collective identity of our nation. Sarats

methodological shift recognizes that to argue against the death penalty by

traditional means, one has to effectively defend the life of Timothy

McVeigh- a tactic that is doomed to failure, given the widespread

sentiments of vengeance highlighted above. Thus Sarat seeks to change the

focus, stressing that in thinking about the death penalty, the faces we

should be looking at are our own.105 Justice Blackmuns dissent in Callins

v Collins stands as the paradigm of Sarats new abolitionism, one which

enables abolitionists to tap into values that are widely shared throughout

America: democracy, the rule of law and a responsible engagement with

societys most severe social problems. Seen through this lens, thediscrepancy between Americas historical shift to painless and private

executions with the Gregg rationales for capital punishment, and the

pervasive societal ambivalence this discrepancy evinces, can cast doubt on

the ongoing constitutionality of the death penalty. Challenges to the death

penalty based on the method of execution need no longer be dismissed as

sly, or back door, as was the case in Baze. By developing Justice Stevens

correlative thinking between the legitimacy of executions per se and the

legitimacy of the methods utilized to carry them out, we might finally come

to realize Schwarzschilds Paradox: that some methods of executions are

worse than others, but none are better.

103 Baze supra note 1 at Stevens 1.104 Kaufman Osborn, Regulating Death: Capital Punishment and the late liberal state, 111

YALE L.J. 681 (2001) (book review).105 Sarat supra note 9 at 250.

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