CommentaryCapital punishment has not always been permitted in this country. In Furman v. Georgia, the US Supreme Court effectively ruled the death penalty unconstitutional, stating that because of untrammelled discretion in the system, being sentenced to death was essentially random and therefore was “cruel and unusual” under the Eighth Amendment to the US Constitution. Many states were quick to change their death penalty statutes in light of the Court’s decision, and in Gregg v. Georgia, the Supreme Court re-allowed capital punishment under new, modern regimes.
Since the reinstatement of the death penalty, methods of execution have evolved, perhaps in part driven by Eighth Amendment considerations: The Eighth Amendment, according to the Supreme Court, is meant to “embody the evolving standards of decency of a maturing society,” and “broad and idealistic concepts of dignity, civilized standards, humanity, and decency against which we must evaluate penal measures.” Wood, who was sentenced to death for a crime he committed in 1989, was executed with a mix of drugs that was used in a botched execution in Ohio earlier this year. Despite controversy over the drug, the Supreme Court permitted Wood’s execution to go forth.
The botched execution of Wood joined the botched execution in Ohio and two botched executions in Oklahoma to become at least the fourth botched execution so far this calendar year. All four have raised questions about the efficacy of lethal injection protocols; the manner of execution is often kept confidential and approved drugs are quickly expiring, raising significant concerns about what drugs are being used and how states are getting them. (For a recap of some of these issues, see Kimberly Newberry’s June 2014 JURIST piece.)
Wood’s case, however, has created some unique waves, even in this fraught area of law. Before his execution, Wood moved to stay the execution, arguing that he and others had a First Amendment right to know the protocol that would be used to kill him. The motion was ultimately denied, but along the way Alex Kozinski, Chief Judge of the US Court of Appeals for the Ninth Circuit, had occasion to weigh in on the issues (PDF) that are plaguing the system today.
Judge Kozinski’s opinion, a dissent from the denial of en banc review of Wood’s motion to stay his execution, argued that capital punishment by lethal injection is fundamentally flawed and that we as a society ought to return to execution by firing squad. Judge Kozinski’s argument has three main reasons for this: First, “attacks” to executions will continue so long as lethal injection is used because of the secrecy surrounding drugs and execution protocols. Second, lethal injections are less effective than other, more seemingly primitive methods; Judge Kozinski favors the guillotine and death by firing squad, ultimately concluding the latter is favored because it is ‘foolproof’ but would still be relatively socially acceptable. Third, Judge Kozinski argued that if we are to put people to death—and it is a “we,” for criminal prosecutions are done in the name of the people and criminal punishments are authorized on our behalf—we should do so without allowing ourselves to fall victim to the charade that executions are calm and dignified events. As he stated, “if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.”
Certainly, if execution protocols remain secret, defendants—and their lawyers and advocates—will likely continue to seek release of the information. To the extent that such moves have been successful in the past, they will likely continue and, as Judge Kozinski states, such litigation bogs down the legal system.
Judge Kozinski’s other contentions seem partially right, but partially off-base. It is the case that lethal injections are “botched” at a rate higher than some other, more ‘primitive’ forms of execution. On the whole, executions are botched at a rate of approximately three percent, with lethal injections botched at a rate closer to seven percent. But earlier methods of execution, including the firing squad, are not foolproof. There are records of at least two executions by firing squad that were botched in Utah, one of last states to allow the firing squad (which interestingly, at the time, led contemporary critics to suggest that a reversion to the guillotine might be called for). To the extent that Judge Kozinski turns away from “the electric chair, hanging and the gas chamber [because they] are each subject to occasional mishaps”, firing squads fall to the same concern.
Judge Kozinski’s other contention—that if we are to carry out executions we ought not shield ourselves from the fact we are shedding human blood, and from their brutality—is more nuanced and, at some level, leads to more trouble.
The backlash from Wood’s execution shows an interesting psychological phenomenon that is not unknown to those who advocate on behalf of convicted and otherwise disadvantaged populations. There are people who truly revel in the horror that was wrought upon Wood and take value from the gruesome nature of executions. A quick read of comments on the news coverage of Wood’s botched execution reveals it.
Certainly, there are people from whom callous disregard, or even revelry in suffering, is expected and understandable. This certainly can include the survivors of the deceased victims of the crimes, as it did in this case. It may even include average members of the American population who comment or post about executions, as in the article provided above. But it also includes individuals like Arizona Governor Jan Brewer, who stated that in comparison to his victims, Wood didn’t suffer.
The problem with this is that there is no space in Eighth Amendment analysis for a comparative amount of suffering. States are not permitted to torture people, even if those people tortured their victims. When the governor of a state putting people to death feels comfortable making such comparisons, the system is suffering from more than illusion about the peacefulness of death—it is suffering from a fundamental misunderstanding of how, and why, executions are permitted to occur. The condemned are to be free from “cruel and unusual punishment”—regardless of how cruel and unusual their crime.
To the extent that people simply refuse to believe that a condemned person suffers during the act of execution, it’s not clear that a shift from injection to firing squad will be of much assistance. Similar sentiments—that the death is fast and relatively painless, for instance—can be lodged against death-by-firing-squad.
There’s an interesting flipside to Judge Kozinski’s argument, as well: There is perhaps nothing that illustrates the brutality of execution more clearly than botched executions. Perversely, if botched executions occur as frequently as they have over the past year with lethal injections, this may do a better job of raising awareness of the messiness of execution than any alternative method of execution could. This, of course, lays aside the point that we shouldn’t use a system that is easily botched—which is the main thrust of Judge Kozinski’s argument.
This leaves us with the question of what system of execution can, or should, be adopted. If the goal is to have a “foolproof” system, as Judge Kozinski suggests firing squads would be, we’re probably just out of luck: mishaps have always marred our system of capital punishment including in the modern, post-Furman era. So in a system that will likely always suffer from mistakes, where the legal standard is supposed to be one that disallows torture and evolves with a “maturing society,” what is the best way to proceed? As Chief Judge Kozinski stated, and as has been underscored by commentators, pretending executions are peaceful and easy when they are not is detrimental. But opting for a method that shines the light on the violent nature of execution will not, in and of itself, suffice. States may not carry out torture; if the best alternative we have is honest torture that in any event is not foolproof, then it’s not immediately clear that that alternative—firing squads—passes constitutional muster. And if we take seriously legal tenets against retribution, torture and cruel and unusual punishment—as well as the Supreme Court’s exhortation that the Eighth Amendment embodies ideals beyond just outlawing outright barbaric punishment—the road forward becomes much less clear and our problems cannot be solved simply by a return to the methods of the past.
Sacha Baniel-Stark earned a B.A. in Philosophy from Reed College. Sacha served as a law clerk for the US Department of Justice and the Capital Appeals Project and Promise of Justice Initiative. Sacha currently serves as the Editor-in-Chief of the Journal of Legislation and Public Policy.
Suggested citation: Sacha Baniel-Stark, Botched executions & evolving standards of decency: What can we learn from Wood’s death? , JURIST – Dateline, Aug. 24, 2014, http://jurist.org/dateline/2014/08/Sacha-Baniel-Stark-Botched-Executions.php
This article was prepared for publication by Endia Vereen, a Senior Editor for JURIST’s Commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
