The death penalty is an odd animal in the 21st century. It’s not that there is a shortage of violence and cruelty today, rather that nations try all they can to classify their state-sanctioned as something besides capital punishment. “Counter-terrorism” has the same outcome- dead accused criminals- but most states that have counter-terrorism units do not have the death penalty. Fundamentally, it seems that most societies have an issue with killing an unarmed, detained person, even if they are morally reprehensible. In political science there is the democratic idea- that even authoritarian societies feel an obligation to act democratic in structure. There is also the abolition idea- where brutal societies still feel the need to formally outlaw capital punishment.
A supermajority of Americans favor the death penalty as an option in murder cases. The question is asked at a general level, which is why I think it’s so high. Many polls ignore the mechanics of the death penalty- how does the justice system condemn people, and how does the state kill them? Popular support is premised on the death penalty being by lethal injection, and this lethal injection being perfectly quiet, hidden, and efficient.
Recent campaigns by anti-death penalty activists against lethal injection have been immensely successful. Created deliberately to avoid the criticism leveled at its predecessors, the three-drug system of anesthetic, paralytic, and an acid to stop was rapidly made unusable through international norms against producing chemicals for use in executions. As explored on the episode “Cruel and Unusual” by WNYC’s More Perfect podcast, Maya Foa from the British organization Reprieve has engaged in a worldwide skirmish with US states seeking lethal injection drugs. Manufacturers were often misled about the use of the chemicals they synthesized and exported, and the European Union has specific bans in supplying executions.
The inability to get drugs should not be surprising, and it underlies a central paradox. In order to soothe the conscience of the public, lethal injection is punishment through medicine. Pharmaceutical companies produce drugs to heal, and are compromised when asked to provide the same drugs to kill. Despite looking very similar to a hospital, the American Medical Association bars physicians from participating in any capacity. As pro-death penalty Professor Robert Blecker of NYU Law says, it is baffling that an execution has many of the same features as us sitting bedside with our dying relatives.
Botched executions have shown that lethal injection is only ideal in an imaginary, perfect world. The paralytic used as the middle drug serves no actual purpose, but to mask how incredibly painful it is to have acid eat your heart if the anesthetic doesn’t work. The process meant to cover its tracks in a way electrocution and hanging never could.
The conservative claim is that activists have ruined the foolproof lethal injection protocol with their work informing chemical companies. But really there is no foolproof plan, and further scrutiny has shown lethal injection to be far more arbitrary and unstable than many would like to believe.
Returning to the beginning: how hard is that 61% of Americans who support capital punishment? If our society had to end the medical façade and go back to capital punishment, would there still be 61% with their hands still up? How many states would have a majority in favor?
In 1851, a huge crowd gathered to watch the first execution in Wisconsin since it gained statehood. John McCaffary had been convicted of drowning his wife. His hanging was botched, and 3,000 people (1 in every 100 state residents at the time) saw him gasp as he was slowly strangled to death. It took twenty minutes for him to be declared dead. The first execution in Wisconsin turned out to be the last, and in 1853 the state abolished capital punishment. Even on the frontier, even in the 19th century when we all assumed people were a bit more Old Testament, being exposed to the consequences of state-sanctioned killing was a transformative experience. Vengeance is unsatisfying. An eye for an eye is not always the best recipe.
In the rationalized modern society we live in, we are shielded from processes we support in the abstract, but would be unable to stomach up close. Most people eat meat, but how many would if they had to kill the animals themselves? Detachment is a luxury; with meat it is a class divide: the commoner’s sheep is the aristocrat’s mutton.
It seems that if a society can only use its greatest punishment at a distance, and has to disguise its vengeance with medicine and the pretense of mercy, it should have nothing to do with killing. The system has twisted itself in knots because, fundamentally, there is no majority that wants to bear witness to this type of justice in its full, uncensored form.