Rick Bowmer / AP

Sentenced to death by lethal bureaucracy

Delays and paperwork may be the death penalty's greatest counterarguments

August 12, 2014 6:00AM ET

Recently, a federal judge ruled that California’s death penalty was unconstitutional because of the delay between death sentence and execution — currently more than 20 years in California. As a result of this decision, more than 700 of the state’s inmates have had their death sentences commuted to life in prison without parole. For the 17 inmates scheduled to be executed in California, no clear protocol appears to exist as to how or when they will be executed.

While District Court Judge Cormac Carney based his ruling on the Eighth Amendment, which prohibits cruel and unusual punishment, he did not argue that the death penalty itself is cruel and unusual. Rather, he wrote that the administrative delays result in high degrees of randomness regarding who will be executed and when and that this waiting game amounts to cruel and unusual punishment. As he put it in his ruling:

Indeed, for most [death row inmates], systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

Carney did not comment on whether a quicker route to execution would be constitutional, and his decision leaves open the possibility that California could streamline its process and reinstate the death sentence. But for now, because the California system operates like a lottery, with little to no reason behind who may be executed and when, all executions have been halted.

In the absence of a moral decision by elected officials or the public to end executions in the U.S., the tyranny of bureaucracy — delays, paperwork and all — might be an anti-death-penalty advocate’s best ally.

Administrative halt

While the court decision may still be overturned on appeal, this case, in conjunction with the recent public kerfuffle over the new drug combinations used for lethal injection, suggests that the death penalty’s days are numbered. While there’s been no real push to end the death penalty on moral grounds — the argument that the death penalty is cruel and unusual per se seems to be forestalled by current Supreme Court jurisprudence — it will likely grind to an administrative halt, both legally and in the court of public opinion, precisely because state governments cannot find a way to carry out executions without revealing their internal inefficiencies.

The Supreme Court previously ruled the death penalty unconstitutional on administrative grounds. In the 1972 Supreme Court case Furman v. Georgia, in which the court struck down the death penalty as it existed in the United States at the time, Justice William J. Brennan wrote a concurring opinion that resonates with the rationale behind many arguments against the death penalty.

He thought that the true problem with the death penalty statutes were that “they treat members of the human race as nonhumans, as objects to be toyed with and discarded.” He and Justice Thurgood Marshall thought that the death penalty was, on its face, unconstitutional, but the court majority decided that the death penalty was permissible as long as it was applied consistently and without discrimination. As a result, states rewrote their laws to add what are usually called aggravating factors (e.g., planned murder, murder committed in connection with other felonies like kidnapping and rape) and mitigating ones (e.g., mental state, mental illness, childhood abuse) that juries must consider before they condemn someone to death.

What if the death penalty is such a bureaucratic nightmare that no one should be subjected to it, least of all the tax-paying public?

Most death penalty appeals rely on the Eighth Amendment to the extent that Furman and other cases have held that the death penalty is cruel and unusual when applied to certain classes of people: the mentally ill, juveniles and a disproportionate number of racial minorities. For a long time, many anti-death-penalty advocates and those who represent the condemned on appeal (legal work I have done) have argued that the death penalty can never be fulfilled in a way that is fair because of jury selection and local judicial politics. The facts indicate that people on death row in every state are mostly poor and members of a racial minority. A significant number are mentally ill.

But the latest death penalty objections present a different argument: What if the death penalty is such a bureaucratic nightmare that no one should be subjected to it, least of all the tax-paying public? Here Brennan’s language about “objects to be toyed with” recalls the nightmare of waiting for Veterans Administration benefits, of people lost in endless paperwork and delay. Today it’s easy to feel alienated and reduced to a number in situations ranging from renewing a driver’s license to applying for Social Security, so the inhumanity of delay may resonate with voters more vividly than persuading people that convicted murderers deserve to be kept alive. The general public expresses little concern about those who commit crimes as long as they are kept out of sight.

Human playthings

Brennan’s objection to treating humans as playthings — an essentially moral argument — isn’t too far removed from the recent administrative objections to last month’s Arizona execution, in which convicted murderer Joseph R. Wood’s lawyers appealed his death sentence under the First Amendment, arguing that he was entitled to know where the drugs that would kill him came from. Because the makers of sodium thiopental, a drug that had been regularly used for lethal injections, refuse to export the drug for that purpose, states are forced to experiment with other combinations. Wood was ultimately executed with the Ohio two-drug protocol: medazolam and hydromorphone. The case bounced back and forth, with a three-judge panel for the Ninth Circuit agreeing that Arizona could not execute Wood until it revealed the source of its drugs. The Supreme Court decided that the execution should move forward by denying the stay of execution, with no comment.

The unavailability of drugs previously used to execute convicts reveals the cracks in the seams about the death penalty — the seeming callousness of state officials in the face of a serious undertaking. There’s something undeniably crude about the reported Texas-Oklahoma football joke by the Oklahoma assistant attorney general when Texas asked Oklahoma for some pentobarbital in order to carry out its scheduled executions.

Ninth Circuit Judge Alex Kozinski even argued that states should resort to the guillotine or firing squads because lethal injection was causing such administrative nightmares. And yesterday a federal judge extended a moratorium on executions in Ohio until January to give the state more time to figure out a new procedure for killing inmates with a different combination of lethal chemicals.

These sorts of moves stem from the same frustration Carney expressed in his opinion. In a technologically advanced age, why can’t states execute inmates in a manner that doesn’t appall so many people?

Kozinski’s argument that the lethal injection isn’t the best method of execution resonates. He thinks that executions shouldn’t be “serene or beautiful.” They are — and should be — brutal. Observers at Wood’s execution say he took nearly two hours to die, gurgling and gasping to the end. Some might argue that he deserved it. But perhaps the most chilling point of all was a state official’s insistent denial that anything had gone wrong.

Objecting to the death penalty on administrative grounds rather than moral ones appears to avoid this conundrum. No one, especially state officials, needs to face the brutality of government-sanctioned death at all, and no one needs to wonder why the death penalty has persisted in the United States when most Western countries have outlawed it. This may be the most logical end to the death penalty, a way that requires no one to admit fault.

Jessica Pishko graduated with a J.D. from Harvard Law School and received an M.F.A. from Columbia University. She practiced corporate law, specializing in securities fraud, and represented death penalty clients and victims of domestic abuse pro bono. 

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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