Earlier this month, the New Hampshire State Senate deadlocked on a vote to repeal the state’s death penalty, tying 12 to 12 and leaving the law in place. The vote, though a disappointment to opponents of capital punishment, was hardly a serious blow to the abolitionist cause. There is just one person on New Hampshire’s death row, and it has no execution chamber. No one has been put to death there since Howard Long was hanged in 1939.
But in keeping its death penalty, New Hampshire did preserve a strange distinction: It is one of three states where hanging still is a legal method of execution.
If it seems surprising, even brutal, that hanging would still be technically legal in 2014, that’s because the evolution of the death penalty in America has been so closely entwined with our belief in technological progress. As executions have evolved from one method to the next—from hanging to electrocution, from electrocution to lethal gas, from electrocution and gas to lethal injection—supporters have proclaimed the dawning of an era of more humane executions while denouncing previous methods as barbaric and unreliable. The story of execution in the United States is partly a story of technology making a final punishment less painful and cruel.
But has it? Using newspaper accounts and a database of all American executions, my collaborators and I recently completed the first comprehensive study of botched executions in the United States and documented the ways that different methods of execution go wrong. We examined every execution from 1890 to 2010 and found that no technology has been able to ensure that capital punishment would not, on occasion, become either a gruesome spectacle of suffering or a messy display of incompetence.
During the time period covered by our research, 3 percent of all executions were botched, from the decapitations that happened at hangings to the “high tech” electric chair in which condemned criminals have caught on fire. Botched executions have not disappeared since America has adopted the current state-of-the art method of lethal injection. In fact, executions by lethal injection are botched at a higher rate than any of the other methods employed since the late 19th century, 7 percent.
This history of botched executions suggests whatever benefits we think we are bringing when we invent and deploy new execution methods may be illusory. A close look at executions in America suggests that despite our best efforts, pain and potential for error are inseparable from the process through which the state extinguishes life—and that the conversation about capital punishment needs to take that fact into consideration.
Over the long sweep of human history, executions generally were not designed, as they are today, to minimize pain and maximize efficiency. Instead, they were intended to display the majestic, awesome power of the government to decide who lives and who dies, who goes free and who suffers.
Accordingly, death sentences have been carried out with a series of theatrical, often deliberately painful, methods. As an Amnesty International report notes, executioners have “sawed people in half, beheaded them, burned them, drowned them, crushed them with rocks, tied them to anthills, buried them alive, and [executed them] in almost every way except perhaps boiling them in oil.”
Since the earliest recorded execution in the United States in 1608, our country has put to death approximately 17,000 men and women, largely without the deliberate cruelty described in the Amnesty International report. Over the course of the last 125 years we have actively tried to find new ways to impose death without unnecessary pain, and to transform execution from dramatic spectacle to cool, bureaucratic operation.
My research shows that we have fallen far short of attaining this aspiration. Mishaps have occurred no matter what method of execution has been employed. They have happened in every region of the country and in states where executions are rare as well as those in which they are common. Each method of execution has its distinctive flaws, which have been compounded by malfeasance or simple human error.
At the turn of the 20th century, hanging was, as it had been throughout most of our nation’s history, the preferred way of carrying out death sentences. Yet hanging was still subject to technical improvement. The most important was the development of what eventually came to be known as the “long drop,” which it was hoped would allow the condemned to fall at enough velocity to reliably dislocate the uppermost cervical vertebrae, separating the spinal cord from the brain stem and ensuring a quick death. Despite these efforts, in just over 3 percent of the 20th century’s hangings something went seriously wrong. Condemned criminals had to be dropped and hanged more than once when the initial fall did not kill them; some strangled to death, and some were inadvertently beheaded.
Problems like these propelled the search for what one reformer called “a clean, clinical, undisturbing method of execution.” Electrocution initially seemed to fit the bill. A New York legislative commission reported in 1888 that “The velocity of the electric current is so great that the brain is paralyzed; is indeed dead before the nerves can communicate a sense of shock.” Two years after that report was completed New York became the first to use the electric chair. But, from that time to the present, electrocutions have been marked by serious mechanical breakdowns which required that the condemned had to be shocked repeatedly. Still others resulted in fires and the sights and smells of burning flesh.
By the middle of the last century, some American states abandoned hanging and electrocution in favor of lethal gas. Relying on techniques first developed in World War I, the promise of the gas chamber was that death would be “swift and painless.” In more than 5 percent of executions by lethal gas, it was not. Finding the right temperature and conditions in which to mix cyanide gas and sulfuric acid was not easy. As a result, people being gassed often struggled, convulsed, gasped for breath, and were asphyxiated for extended periods of time before they succumbed. Such spectacles of suffering made California’s gas chamber infamous worldwide.
Until recently, the latest wave of innovation in the technology of taking life, lethal injection, followed a three-drug protocol that killed the condemned in stages. However, several botched executions and resulting legal challenges discredited that protocol. In addition, the unwillingness of European drug manufacturers to supply drugs used in the three-drug protocol has left states scurrying to find an acceptable substitute. In some lethal injections, inmates have been subject to prolonged efforts to insert intravenous lines or have had layers of skin scraped off in order to locate a suitable vein while drugs leaked into soft tissue. In still other cases, the condemned suffered a painful reaction to the lethal drugs. Lately, as states have experimented with new drugs or untested drug combinations, some of those being put to death appeared to be conscious while a painful paralytic drug did its work.
Faced with lethal injection’s continuing problems, we seem to be at a dead end. With no new technology for taking life in sight, states like Missouri and Virginia are considering bringing back older and seemingly discredited methods such as electrocution and the gas chamber.
Today the United States is the only remaining Western nation with a death penalty. Amid the grave moral argument over whether to have such laws at all, why should we particularly worry about botched executions? To some supporters of the death penalty, the search for a painless way of killing those who kill may even seem paradoxical. Painful death might appear to be a fair punishment for those who, like New Hampshire’s Howard Long, molest and murder children, or for Dzhokhar Tsarnaev, if he is found guilty of the deadly bombing at the 2013 Boston Marathon. As Arlene Blanchard, a survivor of Timothy McVeigh’s 1995 terrorist bombing in Oklahoma City, said at the time of McVeigh’s execution, “death by injection is ‘too good’ for McVeigh....I know it sounds uncivilized, but I want him to experience just a little of the pain and torture that he has put us through.”
There are also those who argue that the threat of a botched execution is an additional deterrent. In 1997, after a malfunction caused a fire during an electrocution in Florida, that state’s attorney general warned: “People who wish to commit murder better not be doing it in the state of Florida, because we may have a problem with our electric chair.”
However, the Constitution’s prohibition of “cruel and unusual punishment” applies to the death penalty as well, and has been variously interpreted as protecting the dignity of even those subject to capital punishment, or requiring that methods of execution be made compatible with society’s evolving standards of decency. No matter how vile their crime, no one has been formally sentenced to die by slow strangulation, or by decapitation, or by burning to death. And at no point in recent history has an American legislature, judge, or jury acted on the view that it’s acceptable to put criminals to death in an overtly uncivilized way.
However it is interpreted, our Constitution commits us to exercise restraint in dealing with even the most heinous criminals and to insure that the ultimate punishment does not devolve into torture. Ninth Circuit Court of Appeals Judge Stephen Reinhardt reminded us of this commitment when, in a 1994 opinion, he noted that the “risks of pain and mutilation inherent in hanging....[mean that] hanging is incompatible with society’s evolving standards of decency.” Contrasting that method with “new and less brutal methods of execution such as lethal injection,” Reinhardt suggested that we finally had found a truly humane and reliable way of satisfying the Constitutional command that when America puts someone to death we must avoid “the infliction of unnecessary pain.”
Reinhardt’s optimism is familiar in the debate over capital punishment—as is the implicit assumption that you can separate physical cruelty from the death penalty. But our own history gives us ample grounds for doubting such claims. After more than a century of trying, we have still not managed to find a way of killing that does not run the risk of violating our most important moral and constitutional commitments. It is possible to see this as simply a failure of ingenuity, one that might be solved by the next clever execution technique. But the story of America’s enforcement of the death penalty suggests another answer as well: that in practice, such a method simply does not exist.
Austin Sarat, associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, is the author of “Gruseome Spectacles: Botched Executions and America’s Death Penalty” (Stanford University Press).