Death penalty debate: Is it possible to kill people in a way that society can stomach?

It's no longer just about morality and deterrence

WASHINGTON, D.C. - We can send a man to the moon but we can’t complete an execution in less than two hours?

I’m sorry if that sounds heartless. But what can one say after the botched execution of Joseph Rudolph Wood III in Arizona on Wednesday?

Reporter Michael Kiefer of the Arizona Republic was a witness to the execution.  He reported that the lethal injection began at 1:54 p.m.

“Then at 2:05, Wood's mouth opened. Three minutes later it opened again, and his chest moved as if he had burped. Then two minutes again, and again, the mouth open wider and wider. Then it didn't stop.

“He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed. And when the doctor came in to check on his consciousness and turned on the microphone to announce that Wood was still sedated, we could hear the sound he was making: a snoring, sucking, similar to when a swimming-pool filter starts taking in air, a louder noise than I can imitate, though I have tried.

“It was death by apnea. And it went on for an hour and a half. I made a pencil stroke on a pad of paper, each time his mouth opened, and ticked off more than 640, which was not all of them, because the doctor came in at least four times and blocked my view.”

Wood was declared dead two hours after the execution began.

The concept of a humane execution may be a moral contradiction.  But no matter what one’s views are on the death penalty, the execution of Joe Wood was inhumane.

Actually, that isn’t true.  Wood was executed for the murder of his ex-girlfriend and her father in 1989.  A relative, Richard Brown, was there as a witness to Wood’s execution.  After it, he said to reporters, “This man conducted a horrifying murder and you guys are going, 'let's worry about the drugs.’ Why didn't they give him a bullet? Why didn't we give him Drano?"

[Related: Death penalty slowly losing public support]

Society seems unable to ignore or turn aside that gut-level need for the ultimate retribution.  Presumably that is part of why the death penalty is still used.

But it is possible that the death penalty debate might heat up. The arguments are entirely not the traditional ones: Is the death penalty a cruel and unusual punishment? Is it moral? Is it a deterrent to crime?

The debate now is more about whether the death penalty can be administered in a way society can stomach. It isn’t just about botched executions like Wood's, of which there have been several. It is also about the length of process, which is costly and cruel. 

A few days before Wood's execution, the United States Court of Appeals for the Ninth Circuit issued a stay in the execution.  The court’s chief judge, Alex Kozinski, one of the most famous and outspoken conservative judges in the country, dissented.  What he wrote is deeply ironic, almost prophetic, given what ultimately happened to Wood:

“Whatever happens to Wood, the attacks [on the process of lethal injections] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments…. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

These are powerful words, especially coming from a federal judge. What Kozinski wrote next has been widely mocked:

“If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time.’’

Kozinski is mischievous. But he is right that the attempt to sanitize executions has made them less efficient and swift. 

But a far more serious court ruling came out of a federal court in California last week.  U.S. District Judge Cormac Carney, appointed by President George W. Bush, ruled that California’s use of the death penalty is an unconstitutional cruel and unusual punishment because of its long delays and uncertainty. 

This argument has been made before, but never accepted by a federal judge in such sweeping form.

Carney’s opinion noted that more than 900 people have been sentenced to death in California since 1978, but only 13 have been executed.  The review and appeals process takes an average of 25 years.

No one has been executed in California since 2006 when courts ruled its administration of the lethal injection amounted to cruel and unusual punishment and violated the 8th Amendment. 

There are 748 inmates on death row in California now.  Only 17 of them have completed the automatic post-conviction review process and are waiting for execution.  The delays are almost entirely the fault of the state and not the appeals of prisoners as many assume.

“For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death – a sentence no rational legislature or jury could ever impose,” Judge Carney wrote.  This “dysfunctional” system has no deterrent effect, he wrote.  Nor does it convey retribution in any coherent way, what the Supreme Court called “an expression of society’s outrage at some particularly offensive conduct.”

The decision will of course be appealed and has a good chance of going to the Supreme Court.

California may be an extreme case, but not that extreme.  The average time between sentencing and execution is 16 years on average across the country.

Society wants to sanitize executions and make them humane – something Judge Kozinski says is impossible and absurd.

Society also wants a fair judicial process, but is unwilling to finance and administer it.

That is immoral, no matter where you stand on the larger question of the death penalty.

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