When the Supreme Court last week granted a stay of execution for a murderer in Mississippi, it imposed a de facto moratorium on capital punishment in the United States. With prosecutors in Texas and other states now saying they will stop seeking execution dates, that moratorium is likely to last at least until the court issues a ruling on another death penalty case, Baze v. Rees, probably in June.
Some foes of capital punishment are celebrating this as a sign of a shift in the national debate. They’re mistaken.
Yes, in one sense, Baze v. Rees is a departure. For the first time since 1878, when the Supreme Court gave its approval to Utah’s firing squad, it will rule on the constitutionality of a particular method of capital punishment. But the court won’t rule on whether lethal injection violates the Eighth Amendment, and it certainly won’t decide if the death penalty itself is unconstitutional. Instead, it plans at most a minor tuneup, a bit of tinkering intended to salve the national conscience regarding the infliction of pain.
The question in Baze v. Rees is how to determine whether Kentucky’s particular lethal injection protocol constitutes cruel and unusual punishment. The court will consider if a three-drug cocktail used to sedate and kill prisoners — a protocol Kentucky shares with three dozen other states — carries an “unnecessary” risk of pain.
The precedent here is a 1947 Supreme Court ruling that “the traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain.” The phrasing raises a question: How much pain is necessary?
It was only in the 1850s or so that Americans became squeamish about the pain suffered by executed prisoners. Before that, pain wasn’t a problem; it was the point. Through drawing and quartering, beheading, shooting or hanging, the state inscribed its power on the body of the convict and provided a lesson in the perils of disobedience.
But as humanitarian sentiments took hold, cruelty became repugnant. Americans grew reluctant to inflict pain, but they were unwilling to abandon capital punishment. They wanted to preserve the alleged social benefits — retributive justice and deterrence — but eliminate the unsightly infliction of pain.
It’s important to spell out whose suffering has been at stake. Courts have tended to focus on what the prisoner feels, but the state officials who determine execution methods have always been equally solicitous of witnesses. Condemned men might well suffer least with the quick and sure guillotine, but Americans reject that method as too gruesome — too painful, in other words, for those watching the spouting blood.
It seems that an added measure of pain for the prisoner is necessary to protect the sensibilities of witnesses and the public. Starting in the 1850s, such sensitivities gave rise first to improved hanging methods and later to the electric chair, the gas chamber and lethal injection. Each method was promoted as less painful for the prisoner and less emotionally fraught for those who watch.
Baze v. Rees falls within this progression. The appellants are fighting not for their lives but for a more efficient cocktail of deadly drugs. In the current protocol, the first drug is intended to produce unconsciousness, the second to paralyze the muscles and the third to stop the heart. In some cases, the appellants say, the first drug fails, leaving prisoners awake but unable to move or speak as they die of cardiac arrest.
It is the inverse of the guillotine. Rather than painless for the convict but gruesome for witnesses, the three-drug cocktail may be easy on witnesses but brutal for the victim — an inert body suffering unspeakable pain.
The Supreme Court may end up banning the cocktail, but such a ruling would only inspire state officials to mix up a new set of drugs. The new protocol may at first appear to work smoothly, but decades of executions have taught us this: Technical systems are prone to failure, and human bodies are irreducibly complex and idiosyncratic. Whatever the technique, executions will go horrifyingly wrong.
Pain is often a necessary part of death. That fact seems unfortunate yet unremarkable in cases of natural death, but when the killing is done deliberately, on our behalf, we keep seeking ways to spare ourselves the dreadful truth.
Mark Essig, the business editor for The Asheville (N.C.) Citizen-Times and the author of Edison and the Electric Chair.