America's execution mess

America's execution mess
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On Wednesday, June 16, the South Carolina Supreme Court vacated death warrants for two men scheduled to die this month, Brad Sigmon and Freddie Owens. The court ruled that the state could not proceed with its plan to use the electric chair in their executions without first offering the alternative of either lethal injection or firing squad. Failing to do so, the court said, violated the “statutory right of inmates to elect the manner of their execution.”

But neither lethal injection nor the firing squad is currently available in South Carolina, one because of a drug shortage, the other because the state has not been able to find enough people to fill out a firing squad or devise suitable protocols for it.

The court ruling followed on the heels of a law passed last month by its legislature which made South Carolina the first state in the nation to abandon lethal injection as its primary or default method of execution. Instead, the state would turn first to the electric chair.

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This change marked a significant moment in America’s death penalty history and a startling reversal of fortune for lethal injection, which since its first use in Texas in 1982, had been administered in 88 percent of all this country’s executions.

The new South Carolina law offers death-row prisoners the choice of the method by which they will die, whether by electrocution, firing squad, or lethal drugs. If a prisoner refuses to make this cruel choice, the state mandates they die in the electric chair.

South Carolina’s scramble to resurrect gruesome and previously discredited execution methods — as well as its insistence that inmates become complicit in their own execution — illustrate America’s execution mess.

The mess is the result of the by-now well-documented problems surrounding lethal injection and this country’s continuing search for a way of putting people to death that is safe, reliable, and humane.

At a time when the numbers of death sentences and executions are declining nationwide, the execution mess fuels growing doubts about capital punishment among the American public.

Moreover, it exposes the fallacy of the longstanding belief that the U.S. could find a technological fix in the grim business of putting people to death. This belief has long been part of the death penalty’s legitimating narrative.

Until 2010, when it carried out its last execution, South Carolina had one of the highest executions per capita rates in the United States. Only Oklahoma, Texas, Delaware, Missouri, Alabama, Virginia, and Arkansas put more people to death per 100,000 residents.

South Carolina ranked ninth in the number of its death sentences that actually led to executions. From 1996 to 2009, South Carolina averaged about three executions per year.

But resuming executions in that state has not been easy.

After a futile attempt to secure drugs needed for lethal injection, the state brought out its disused electric chair and readied it for action. But none of those scheduled to die elected death by electrocution, so South Carolina joined Utah, Oklahoma, and Mississippi in adding the firing squad to its execution arsenal.

Even that has turned to be more complicated than the state’s death penalty supporters imagined.

William R. Byars, Jr., Director of the South Carolina Department of Corrections, informed the state supreme court that "Lethal injection is unavailable due to circumstances outside of the control of the Department of Corrections and firing squad is currently unavailable due to the Department of Corrections having yet to complete its development and implementation of necessary protocols and policies."

As the spokesperson for the department explained, that work can be complicated because “creating a new method of execution is multi-faceted and demands deliberate and intentional work to ensure the policies, procedures and infrastructure are proper.” 

The fact that, over the last 100 years, the United States has adapted several different execution methods and today allows five methods (hanging, electrocution, the gas chamber, the firing squad, and lethal injection) is quite unusual among countries still using the death penalty.

Other nations have tended to find and stay with a single method. Their histories have not been characterized by a search for an ever-better method of execution.

Outside of the United States there is an immense variety of methods of execution. A study by the Cornell Center on the Death Penalty Worldwide lists nine that are used around the world: hanging, firing squad, shooting, beheading, lethal injection, stoning, lethal gas, electrocution, and falling from an unknown height. Hanging is the most common.

Of the four nations which executed the most people in 2020, China only uses lethal injection. Iraq uses only hanging. Iran, in contrast, uses hanging (sometimes in public), shooting, stoning and throwing from a height to kill its condemned. Saudi Arabia uses both beheading and stoning to execute. None seems to worry very much about the suffering of those they execute.

The story of execution methods in the United States is quite different.

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It is one of conflict between modern notions of humaneness and the continuing desire to execute criminals. We can understand the changing methods as an ongoing attempt to salve the conscience of those who order state killing, as if a quick and easy death were easier to impose.

And we can thank the prohibition on cruel and unusual punishment, enshrined in the U.S. constitution, for the legal and judicial pressure to come up with painless methods of putting people to death.

Americans have dealt with that conflict and that pressure through the reinvention and technological modernization of the execution apparatus. The South Carolina story, and the execution mess which it exemplifies, suggest that we may be at the end of the road in that effort.

As New York Times columnist Russ Douthat wrote in 2017, the United States has expended considerable effort to remove two specific elements from its death penalty system: spectacle and pain. Its search for ever better methods of execution, he rightly observes, has been “about maintaining the illusion of clean hands — while harsh punishment is still imposed, but out of sight, on souls and bodies not our own.”

America’s execution mess exposes that illusion in all its shameful fraudulence. None of us can have clean hands when the state kills in our name.

Austin Sarat is associate provost and associate dean of faculty and the William Nelson Cromwell Professor Jurisprudence and Political Science at Amherst College. He is author of numerous books on America's death penalty, including Gruesome Spectacles: Botched Executions and America's Death Penalty.