Performative decency

The Search for the Unholy Grail - Part II

The first execution by electric chair in 1890 was also the first botched execution by electric chair (see The Search for the Unholy Grail Part I.)

Despite this inauspicious introduction, during the first half of the 20th century the chair was adopted by 27 states and by 1949 it was the most-used used form of execution.

The electric chair had been introduced as a “more humane” way of killing than hanging, which had been until then the preferred method in the 19th century.

Originalists v. Living Constitutionalists

This search for a “humane” execution method became a continuing thread throughout the 20th century, driven by two Supreme Court decisions which recognized that the America of the 20th century was not the America of the 18th or 19th centuries.

Although the decisions themselves did not involve capital crimes, they set a direction for interpretation of the Eighth Amendment throughout the century. The first of these cases was Weems v. United States (1910).

In Weems, the Supreme Court held that the Eighth Amendment's prohibition on cruel and unusual punishment wasn’t fixed, but could "acquire wider meaning as public opinion becomes enlightened by humane justice.”

Key to the Weems decision was that proportionality is key to the Eighth Amendment. What does that mean?

Paul Weems was a U.S. official in the Philippines who was convicted of falsifying a document. He was sentenced to 15 years of hard labor shackled at the wrists and ankles, plus loss of civil rights and perpetual surveillance.

The Supreme Court struck this sentence down because it deemed that the punishment was grossly disproportionate to the crime, and hence a cruelty.

The Weems decision marked the beginning of a tug-of-war between strict originalists, who regarded the U.S. Constitution as fixed and tied to its meaning at the time of ratification in 1788 (when such punishments were unremarkable) and living constitutionalists who regarded the Constitution as a document that should be seen through a contemporary lens based on current values and circumstances.

The “evolving standards” doctrine

The second of the two cases, Trop v. Dulles (1958), also involved proportionality. In penning the Court’s decision, Chief Justice Earl Warren wrote that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

This “evolving standards” doctrine led to a number of decisions involving the death penalty during the 20th century:

• Furman v. Georgia (1972)
  in which five justices held that existing death penalty practices were arbitrary and capricious, violating evolving standards of decency. The Furman decision temporarily halted capital punishment nationwide.

• Coker v. Georgia (1977)
  which held that the death penalty for the rape of an adult woman was disproportionate.

• Enmund v. Florida (1982)
  which limited the death penalty for accomplices who neither killed nor intended to kill.

• Thompson v. Oklahoma (1988)
  which struck down the execution of offenders under 16, invoking evolving standards.

However, not every Court sided with the living constitutionalists:

• Gregg v. Georgia (1976)
  reinstated the death penalty post-Furman, finding that new procedural tweaks justified resurrecting the penalty and, presumably, satisfied society’s standards.

• Stanford v. Kentucky (1989)
  upheld the death penalty for 16- and 17-year-olds, rejecting arguments about evolving standards. (This was later overturned by Roper v. Simmons in 2005.)

Gruesome v. Botched

In order to pass muster with this “evolving standards”-aware Court and with a society that had started to exhibit distaste for horrific executions, during the 20th century states introduced new, purportedly humane protocols: the gas chamber and lethal injection.

Neither delivered on the promised humanity. In fact, the new methods proved to be far more likely to be bungled, with horrifying consequences.

The most scientific, most antiseptic method of all—lethal injection—has had a woeful record on this front.

There is disagreement about what counts as a botched execution. I have included Eliseo Mares’ 1951 execution by firing squad in Utah in the botched count, going with eyewitness rather than official accounts of his execution.

Lethal injection was developed in 1977 in response to a push by Oklahoma legislators to find a more humane method. The medical architect was Dr. A. Jay Chapman, then Oklahoma’s chief medical examiner/forensic pathologist.

The original three-drug formula Chapman proposed combined an ultra-short-acting barbiturate to induce unconsciousness, a paralytic (pancuronium bromide), and potassium chloride to stop the heart. The sequence was meant to render the process medical-looking and, proponents claimed, painless. Texas was the first state to use the new, experimental protocol.

Unfortunately, when anything goes wrong with the administration of the barbiturate, as it does not infrequently, the third drug causes excruciating pain.

The second drug, which renders the condemned person completely immobile is not there to make the process more humane for the victim; it is there to protect the witnesses from observing anything that would look too much like torture.

Dr. Chapman later expressed regrets that he had agreed to design the lethal injection protocol, not because he was against it being used in executions but that it had been used without “proper medical safeguards.” A little like ensuring that the guillotine’s blade had been sharpened to OSHA standards.

Onwards to the 21^st

So, what about the 21^st century?

Public support for the death penalty peaked towards the end of the 20th century, driven to new heights by the “law and order” rhetoric of President Reagan and his successors, rhetoric that also led to an explosion of incarceration.

During the 1990s polls showed public support for the death penalty soaring to around 80%; in Louisiana and much of the South, support was over 90%.

That support has withered away throughout this century, diving down into the low fifties, and even lower when life without parole is posited as an alternative.

How have the Eighth Amendment and the search for the unholy grail of a “humane execution method” fared in this climate?

I’ll take you there in the next part of this series. It’s a doozy!