photo by Tommy Woodard
Americans, especially Americans who are parents, have a problem.
Most of us can agree that we want to be careful about what we teach children about violence. Though particulars vary, we generally want to instill the ideas that violence is not a solution to our problems and that it is a tool only to be used in self-defense. We also try to teach our kids about justice, and about compassion.
Yet, as a society, we also take confined, disarmed, aging individuals who committed a crime many years prior - assuming they were not wrongfully convicted - and make them the objects of ritualized murder.
Capital punishment is barbaric and gruesome by its very nature. As Alex Kozinski, the chief judge of the Ninth U.S. Circuit Court of Appeals, recently observed, executions “are brutal, savage events, and nothing the state can do can mask that reality.”
Kozinski’s observation appeared in his strongly worded dissent in the case of Joseph Wood. Wood, who had been convicted of a pair of murders in 1989, was executed last Wednesday after the court declined to give him an en banc rehearing. Kozinski’s dissent criticized the attempt to keep our collective hands artificially clean by using lethal injection rather than a more foolproof method for carrying out state-sanctioned executions. He suggested the “more primitive” but “foolproof” method of firing squad.
“[…] if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood,” he wrote.
Just days later, Wood’s execution seemingly underscored Kozinski’s point. The execution lasted about two hours, compared to a more normal 10 minutes or so. Witnesses described it anywhere from the understated “tough” to the more frank “bungled” or “botched.” While Arizona officials maintain that Wood was deeply sedated for the entire period and that the lengthy execution was still lawful, Arizona Gov. Jan Brewer nevertheless ordered the state’s Department of Corrections to examine the incident. (This means the department will be examining itself, so I don’t expect much to come from this inquiry.)
If all of this seems familiar, it should. Earlier this year, Clayton Lockett’s botched execution in Oklahoma raised similar questions about the implementation of lethal injections, and of capital punishment more broadly. And this January, Dennis McGuire’s execution in Ohio took 24 minutes; he appeared to gasp and convulse for about half of that time.
The government makes us all accomplices through our justice system, and it makes some of us - the people who make the drugs used in executions - more direct participants. Many pharmaceutical makers are draftees, not volunteers; they are doing their best to keep their products from being used to put human beings to death. It is unsurprising that some companies have withdrawn their drugs entirely or restricted shipments to the United States, and that others whose products are being used to kill people have demanded a veil of secrecy. Hence the recent attempts by states to keep their formulas and their suppliers confidential. But this opacity only makes the problem worse, as more and more of the drug cocktails used are necessarily “experimental,” since components of time-tested combinations are no longer available.
On top of all this, whether a crime is punished by death is essentially a random event, depending on the jurisdiction in which it is committed and tried, the vicissitudes of defendant and jury, the quality of legal representation and even the judges who happen to be assigned to hear a trial and the appeals that always follow. Its very inconsistency of application gives it a random character that is the opposite of justice. A federal judge recently recognized as much in California, the state with more inmates awaiting executions than any other.
U.S. District Judge Cormac Carney said, in a ruling earlier this month, “[…] for the random few for whom execution does become a reality, they will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.” California has almost 750 inmates awaiting execution, but only 13 executions have taken place since 1976. Over 40 percent of California’s death row inmates have waited more than 19 years since their convictions. Executions have been on hold altogether since 2006, when a different federal judge ruled that the state’s method of lethal injection was unconstitutional.
The fact that innocent people sometimes end up on death row, exposed to an error that the state can never repair, gives capital punishment in any form an utterly untenable cost-benefit equation from the perspective of serving justice. The death penalty isn’t really about justice at all; it is about vengeance. If you want to confirm this observation, just listen to the anguished and angry comments from the family members of Wood’s victims. Jeanne Brown, a relative who was present, commented that “This man deserved it,” according to CNN. “And I shouldn’t really call him a man,” she added.
For the victims’ family and loved ones, whatever the perpetrator suffered could not have been enough. Anyone with any amount of empathy can understand how and why they feel that way. But our legal system is not supposed to deliver vengeance. It is supposed to deliver justice. So it is harder to understand why a public official, such as Gov. Brewer, would think it is appropriate for the state to provide a way to realize such vengeful sentiments. The death penalty may give those hungering for revenge a taste of it, but it does not serve the wider interests of society in any meaningful way.
Capital punishment doesn’t make us safer. It doesn’t make our justice system fairer, or more efficient, or even more just. It serves no useful purpose. Someday, a Supreme Court will conclude that from a constitutional perspective, it is beyond saving.