Capital Punishment: At a Crossroads? Washington Post Editorial

http://www.washingtonpost.com/wp-dyn/content/article/2007/01/13/AR2007011301271.html
Sunday, January 14, 2007 | D01

Dead End
Capital Punishment: At a Crossroads, or Is This the Exit?

By Neely Tucker
Washington Post Staff Write


Gary Gilmore, patron saint of the modern American execution, hear our
plea.

Give us potassium chloride, give us death, but give us two good grams
of
sodium thiopental first.

Give us the long drop, the 2,000-volt surge, the Cor-Bon 185-grain
jacketed
hollow-point .45, but let the country give up this quest for a painless
execution.

Is it even possible? It has been the holy grail of executioners for
more than
a century, and we are still plodding along the capital punishment road,
vast
horizons ahead.

Lethal injections, once thought of as perfection revealed, are now on
hold in
Maryland, California, Florida, Missouri, South Dakota. Doctors say
that, if
improperly administered, they might cause the condemned to die in pain.
Since
this pain violates constitutional protections against cruel and unusual
punishment, and since lethal injections are now the method of choice
for
almost all executions, opponents think they may have found the way to
do away
with capital punishment in America.

"I don't think we've changed morally, but we may be in that process" of
abolishing the penalty, says Richard Dieter, executive director of the
Death
Penalty Information Center.

"A pivotal moment in history," editorialized the Lancet, a medical
journal
that has played a key role in the latest attempts to outlaw lethal
injection.

Is this it? Are we approaching the end?

Thirty years ago this week, Gary, is the anniversary of your execution,
the
one you worked so hard to bring about, the one that reintroduced the
nation to
the moral complexities of capital punishment after a decade's respite.
Did you
feel pain in that squalid Utah state prison room, strapped into an
office
chair in front of a grimy mattress, five rifles pointed toward the
white
circle over your heart?

The press reported your last public words:

"Let's do it."

Less known were your actual final words to a priest:

Dominus vobiscum.

The Lord be with you.

And then, the blood dripping onto your shoes.

* * *

Hanging. People used to like hanging.

It worked pretty well. (See: Hussein, Saddam -- the hanging, not the
chaos and
hooting.) It asphyxiated, it snapped spinal cords. A big hit for
centuries the
world over. It clearly was less sadistic than disembowelment, the
crucifix,
the pyre, the garrote.

It didn't require much -- knotted rope, height -- and was rich in
symbolism.
Hangman. Gallows. Noose.

But hanging was so easy that lynch mobs used it, which led to nasty
image
problems, and it wasn't all that painless or quick, unless you knew how
to
calculate prisoner weight, length of fall, pressure required to break
the
neck. People tended to squirm up there on the rope, which made people
squirm
down there on the ground.

So, about 140 years ago, Americans turned to their new god of Science
for even
better ways to kill the condemned. Anesthesia was in its infancy, and
this
would have a profound change on human existence and its termination --
pain
was no longer inevitable. It could be avoided and, in terms of
executions,
people came to feel it should be.

Now, according to the Associated Press, at least 19 of the country's 38
death-penalty states offer sedatives and anti-anxiety drugs to
condemned
inmates before execution, almost as if they're putting the family's
golden
retriever to sleep.

"A great deal of effort goes into preparing the condemned felon
mentally for
what he's about to face," says Edwin Voorhies, warden at the Southern
Ohio
Correctional Facility. "Our goal is to get them to walk peacefully into
that
chamber."

This anesthetic concept introduced the fundamental American paradox of
execution that continues to this day: It is constitutional to execute
condemned criminals. It is not constitutional to hurt them while you do
it.

"The proper punishment was viewed as death, not death plus lots of
pain," says
Stuart Banner, a professor at the UCLA School of Law and author of "The
Death
Penalty: An American History." "The driving force behind the changes in
executions ever since has been minimizing the pain for the condemned,
both for
their sake and that of the spectators."

Ah, yes. Less discomfort for spectators. Absolution for the living. We
promise
the condemned a painless death, something that none of the rest of us
are
given, and we employ the most modern means of science to accomplish
this. The
care taken is evidence that this is not revenge, or a continuation of
what
scholar Francis Zimring calls "the vigilante tradition."

"The sensitivity is not for people opposed to the death penalty,
because they
are opposed to it on any grounds," says Zimring, a law professor at the
University of California, Berkeley, and author of "The Contradictions
of
American Capital Punishment." "It's for people who are ambivalent
supporters."

And Americans (including the president) do support the death penalty.

They do so at 67 percent, though their betters -- newspaper editorial
writers,
the French -- tell them they shouldn't. The United States is one of
four
countries that account for about 95 percent of the world's executions
(the
others being China, Saudi Arabia and Iran). Americans support it three
decades
after all of Western Europe stopped, calling it outdated, unfair and
barbaric.
Amnesty International, Human Rights Watch -- oh, you know.

Opponents generally portray it as being on its way out, though that is
hardly
clear.

Two months ago, voters in Wisconsin asked to reinstate the death
penalty --
153 years after abolishing it. The non-binding referendum, which said
the
penalty would be used only for vicious crimes where DNA evidence proved
guilt,
passed at nearly 56 percent.

"It passed in 71 of 72 counties, and in some counties the vote was at
68
percent," said state Sen. Alan Lasee (R), who pushed the bill.

This despite the patchwork nature of capital punishment, the fact that
there
is really little rhyme nor much reason as to who gets executed, and
why. (A
man is executed in North Carolina for killing his stepdaughter, but the
BTK
Killer in Kansas and the Green River Killer in Washington get life in
prison.)
It is so seldom used (56 times last year) that it has long since
stopped being
a working part of the criminal justice system. In the past 20 years,
prosecutors and supporters have begun saying it is needed because it
"brings
closure" to victims' families, but they can't possibly mean that,
because that
would imply that 99 percent of the families of victims never get
closure. The
system is filled with what Supreme Court Justice Harry A. Blackmun once
called
"arbitrariness, discrimination, caprice and mistake."

With so much imperfection about crime and punishment, it seemed the
least
thing the nation could do was to find the perfect means of execution.
There
would be one perfect note in the whole process, and it would be, with
morbid
certainty, the last one.

By killing painlessly, we would accommodate the Constitution and
assuage our
conscience -- the condemned would have a gentler death than they dealt
out.
(Or, at least, than they were convicted of having dealt out.)

This search started long ago. For a while, back in the 1800s, there was
something called the "upright jerker." It was inverted hanging -- you
still
had the noose, but you didn't drop -- a contraption snapped you up in
the air!
It was supposed to be a quicker death.

But it was still so low-tech.

By 1886, a New York commission sat down and considered 34 different
means of
doing the deed. There were three desirable criteria, which have been
the
hallmarks of executions in America ever since: (a) speed, (b) absence
of pain
and (c) lack of blood.

Their answer then, much as it would be 100 years later, would be to
turn to
the science of the day. Electricity was the latest thing. It had never
been
used to intentionally kill anyone before, and it wasn't even known how
it
caused death (ventricular fibrillation, it would turn out).

But new science? Technology?

Brilliant!

Edison was involved in the design. The big decision was whether to use
direct
or alternating current.

William Kemmler was the first killer strapped in, electrodes attached
to the
base of his spine, to a metal cap strapped onto his head. Press
accounts say
he told the prison authorities to take their time and do it right.

Boy, did they!

Capillaries in his face burst. Blood oozed onto his face. Burnt flesh.
Singed
hair. The 25 spectators were nauseated. He was dead, all right, but it
wasn't
quite what people pictured.

But you can't stop Americans from improving on things. The kinks were
worked
out. The chair remains in use today, though rarely, and not without the
occasional mishap.

There were other developments, too, some rehashed, some new.

Firing squad?

Dramatic, instant. Excellent! (But bloody.)

Gas?

1924's brainchild! Used in 1960 for Caryl Chessman, best-selling prison
author
and worldwide sensation for death-penalty opponents! One could not help
thinking about that pause between the gas pellets dropping and the
first whiff
of lethal fumes. And wondering about just how long human beings can
hold their
breath.

Lethal injection?

What could be better?

Oh. Wait.

* * *

Stanley "Tookie" Williams did not die well.

The "execution team" at San Quentin didn't set the intravenous line in
his arm
properly in 2005 when the Crips co-founder lay strapped to the gurney.
This
meant he may have been conscious to feel the deadly potassium chloride
pour
into his veins.

"It would be a cruel way to die: awake, paralyzed, unable to move, to
breathe,
while potassium burned through your veins," said the Lancet.

Nobody really knows if Williams died in pain, but the process didn't
look
good. When a federal judge questioned the executioners about the
errors, one
team member said the crew wasn't exactly broken up about it:

"[Expletive] does happen," the witness said.

It turned out the executioners had no training in mixing the lethal
drugs.
Also, one member had been disciplined for smuggling illegal drugs into
prison.
Also, the team leader had received a diagnosis of post-traumatic stress
disorder. Also, a bunch of sodium thiopental -- an addictive controlled
substance -- was taken from the prison pharmacy by execution team
members and,
um, not used or returned. (At least somebody out at San Quentin was
feeling no
pain.)

Four hundred years of execution in this country (the first one was at
Jamestown, 1607, firing squad), and this is where we are.

Then, in 2006, Angel Nieves Diaz in Florida took twice as long to die
as the
15-minute procedure usually takes, because the technicians had put the
needle
all the way through his vein, delivering the mix into the tissue of his
arm,
not the bloodstream. He had chemical burns on his arm at autopsy. Some
24
minutes into the procedure, technicians reported he was blinking,
licking his
lips. It led to a halt of all executions in Florida.

This, coupled with the judge's hold on executions in California, became
national headlines. Now all lethal injections across the country are
pretty
much on hold while the courts sort it all out.

Shocking! Lethal injection errors! People act like this is new.

Did everyone forget John Wayne Gacy?

Chicago's killer clown, strangler of 33 teenage boys and young men, was
due
for lethal injection in 1994. Gacy ate a last meal of fried chicken,
said he
was innocent, said, "Kiss my ass," and lay down on the table for his
lethal
injection.

The intravenous tubes clogged. The drugs wouldn't go through.

Prison officials had to close the blinds to the execution chamber,
reset the
IV, then open the blinds. Then they killed him.

Nobody really cried, because nobody really liked John Wayne Gacy,
anyway,
though he could paint a nice clown picture.

* * *

People forget, Gary, they do.

They forget what you knew, as soon as you shot those men out in Utah:
Killing
a man is easy.

The living with it after. That's what's hard.

That's what maybe this country has learned: We are a society that kills
certain prisoners. We kill more in some years, less in others. It comes
and
goes. But there is no perfect, painless, fair way to do it. It turns
out there
is no absolution for the living. It turns out the dead haunt us. It is
a
thought as disturbing as the bodies of Richard Hickock and Perry Smith,
the
killers in Truman Capote's "In Cold Blood," dying the old-fashioned
way,
swinging at the end of a rope in the middle of the Kansas night.

The images do not lie easy on us, not in our sleep, not in yours, and
it seems
they never will.

Perhaps that is as it should be.