Another Stab at the Death Penalty

Last year I argued that the frequently employed cocktail of questionably sourced sedatives and heart-stopping drugs is unreliable, and that its use in lethal injections for condemned criminals in the United States amounts to cruel and unusual punishment. (Re: Cruel and Usual, WUPR 21.2.)

But what is “cruel and unusual,” really? This language, pulled directly from the Eighth Amendment, has been scrutinized in Supreme Court cases. Via precedent, it has been sculpted into a pragmatically loose legal definition. The terms are ethical, dare I say instinctive, standards—Supreme Court Justice Potter Stewart’s notion of pornography, “I know it when I see it,” would probably be better applied to the amorphous concept of cruelty.

While I would love to avoid a semantic argument, I think the contemporary zeitgeist demands it. The “unusual” in the phrase is meaningless in an analysis of the death penalty; the punishment is common because many states routinely condemn inmates to death. Punishments that would be perhaps constitutionally “unusual” but not “cruel,” such as public shaming, tend not to be handed down in favor of the preferred incarceration. (When you read the stories of people walking around with legally mandated sandwich signs reading “I am a shoplifter,” the defendant almost always had the option to pay a more standard and usual price for their misdemeanor.)

“Cruel,” on the other hand, is the important part, and unlike “unusual,” its definition hinges upon one’s value system and circumstances in life. I cannot and would not like to speculate as to how I would feel towards a killer of a loved one, but it is not improbable that my conception of a “cruel” punishment might change. Regardless, as I wrote last year, I (and my definition of “a reasonable person”) would feel comfortable drawing a line before the commonly-experienced suffering of lethal injection subjects where the drugs didn’t work as planned. Indeed, no human or government should subject any individual to a procedure where a frequent outcome is a torturous, writhing ordeal like that experienced by Clayton Lockett.

But the extreme suffering involved with capital punishment in America goes beyond the nights of the (often botched) executions themselves. It’s not just the procedure itself that is cruel—life on death row itself is likewise a cruel punishment.

I can imagine few life circumstances less psychologically damaging than sitting in a prison cell with the knowledge of a looming execution date, and that life will possibly end extremely painfully. This is very different from a criminal “rotting away” in prison for the rest of his or her life. Set aside the true claims that lifetime incarceration is cheaper on taxpayers than lethal injection, and that the state often kills not guilty inmates; spending weeks, months, years, and even decades in prison knowing it could end with the agony of a botched execution is a torturous existence.

Sources tend to agree that the average time a death row inmate spends waiting for his or her execution date is over ten years, and this does not figure in the time they spent, usually incarcerated, awaiting their conviction or sentencing. There is a reason that many death row inmates die before their execution dates; some wait decades for their day to come, and for many there’s no doubt that their physical health was degraded by the physical taxation of prison life coupled with the Kafkaesque stress of knowing the government could schedule their execution at any point in time. Many others find a way to commit suicide. I cannot see how it is possible to believe that a prison system like Oklahoma’s, which was responsible for Clayton Lockett’s botched execution, sincerely seeks to rehabilitate inmates (as its website indicates) if 49 people on its death row (as its website also indicates) realize they could be the next one on the gurney.

Even if states find a way to reliably end lives, the death penalty will always be motivated by an unadulterated thirst for retribution. We can replace the guillotine and firing squad and electric chair with an IV, but the principle and greater processes leading up to the moment will not change. Capital punishment will never be clean.

Regarding advance notice of execution dates: there is no universal protocol I could find whereby states set execution dates; while many are set over one year in advance, last-minute stays or grants of clemency, possible delays due to difficulties in procuring drugs, and other factors often lead to uncertainty over the reliability of those scheduled dates.