We've Come a Long Way? New and Nicer Ways to Kill the Bad Guys

Capital punishment is under attack or abolished in most of the civilized world. Continuing are efforts to find a "humane" way to kill. The results are not always successful.

This is not an article in support of or opposed to capital punishment for egregious crimes. There are substantial arguments in opposition to that punishment and, in my opinion, less impressive arguments in support of the practice. The issue is whether attempts to sanitize the practice, making it less disturbing to the public is appropriate or meaningful. Does it work?

A study of punishments must begin with Exodus 21:23-25, "If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe." The meaning of this passage is the basis for much criminal jurisprudence: punishment must be proportionate to the crime.

Capital punishment has been with mankind from the earliest days. Until fairly recent times, measured in historical terms, there were no prisons for long-term incarceration and the penalty for even the most minor of offenses was death. The method of killing varied, from the most barbaric to what is considered to be (by some) a more "humane" method, lethal injection.

In the early nineteenth century Britain abolished "drawing and quartering: for treason and other high crimes: the condemned was dragged to the place of execution; then hanged by the neck for a short time until almost dead; then disemboweled; and the genitalia and entrails burned before the condemned eyes; then beheaded and the body divided into four parts for public display. These guys really knew how to put on a show for the amusement and entertainment of the masses.

A note on the effectiveness of hanging in the early Unites States and Britain. The penalty for being a thief or pickpocket was, often, public hanging. The event usually drew a crowd in which pickpockets thrived, doing their work. So much for deterrent.

Over the centuries, civilized societies have come up with inventions and procedures to make killing less offensive, perhaps easier to accept. In 1792, the guillotine was adopted in France as the official means of execution. This device was designed by a physician to ensure that beheading be swift, certain and without undue mess.

In the American colonies and the first centuries of the United States, the preferred manner of execution was hanging. There were all sorts of variations, but nearly all involved a public ceremony and, amid singing of hymns and preaching, execution. At the end of the nineteenth century, in the United States, the electric chair was introduced as a scientific "humane" manner of execution. These executions were not in public view and only occasional stories were published suggesting that the process was horrible to watch, obviously painful and inhumane and generally unpleasant. Reports of hair on fire, multiple charges of electricity that did not kill the prisoner, all made a search for a less offensive way to kill.

The very nature of the electric chair death gave strength to those who pushed for abolition of the death penalty altogether. Newer alternatives were brought forth, namely the gas chamber and the firing squad in Utah and Nevada. These appeared to be less "messy" and perhaps more humane, but still the efforts to find a clean, pure almost peaceful way to dispose of convicted felons continued.

Enter lethal injections.

This is the newest craze, one that seems scientific, less barbaric, less inclined to produce arbitrary suffering. The only problem is that, because of poorly trained prison staff, uncertainty of dosage and the refusal of physicians to participate in the procedure, such unnecessary suffering does in fact happen.

Taking these points in inverse order, the American Medical Association, most state medical societies and most ethicists have taken the position that the participation of a physician in the execution process is against the principles of the profession: "The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine - first, do no harm. Therefore, requiring physicians to be involved in executions violates their oath to protect lives and erodes public confidence in the medical profession." The AMA recognizes that the decision is to be made by each individual physician, according to his or her own beliefs, but the principle is clear.

The peer review journal of medicine, PloS, published on April 24, 2007. a research study that pointed out the potential flaws in the legal injection protocols. The Journal reported,

"Lethal injection is a common form of execution in a number of countries, most prominently the US and China. The protocols currently used in the US contain three drugs: an ultrashort-acting barbiturate, thiopental (which acts as an anesthetic, but does not have any analgesic effect); a neuromuscular blocker, pancuronium bromide (which causes muscle paralysis); and an electrolyte, potassium chloride (which stops the heart from beating). Each of these drugs on its own was apparently intended by those who derived the protocols to be sufficient to cause death; the combination was intended to produce anesthesia then death due to respiratory and cardiac arrest. Following a number of executions in the US, however, it has recently become apparent that the regimen as currently administered does not work as efficiently as intended. Some prisoners take many minutes to die, and others become very distressed."

Studies of executions in California, North Carolina and Virginia, the only jurisdictions which publish detailed information about individual executions show that a combination of inadequate dosage of drugs and the failure of adequate supervision and training of personnel makes the procedure unnecessarily cruel. According to the data in PloS, in fact, post mortem examinations of executed persons and euthanized animals often show a greater concentration of anesthesia in the latter.

The available literature indicates that lethal injections are often poorly administered and often allow unnecessary cruel and unusual punishment.

So what are we to do, those who support the concept of capital punishment? First, we have to decide what the punishment is designed to accomplish. Second, we have to consider the accumulated policies of the rest of the world and the experiences in other societies.

It is a commonplace that capital punishment is a very contentious issue. Supporters of capital punishment argue that it deters crime, prevents recidivism, and is an appropriate form of punishment for the crime of murder. Opponents of capital punishment argue that it does not deter criminals more than life imprisonment, violates human rights, leads to executions of some who are wrongfully convicted, and discriminates against minorities and the poor.

In those countries which have abolished the death penalty, there has been no statistical increase in capital crimes. It does, of course, prevent recidivism; the criminal is dead. On the other hand, we read often how persons on schedule to be executed are exonerated by newly discovered evidence, including DNA. It is arguable that a similar number of persons, in fact not guilty of the offense charged, have been put to death. DNA evidence, according to one recent study, has resulted in the release of one person per year since 1992.

But this is an argument that belongs in the states' legislatures. The method of execution should not be so "sanitized" that the merits of the policy is not explored.