On Jan. 23, the United States Supreme Court announced that it will review newly developed drug protocols used in U.S. executions by lethal injection to determine whether they violate the Constitution’s ban on cruel and unusual punishment. The Washington Post stated that the real issue for the court would be “how to humanely execute the perpetrator of some the country’s most gruesome crimes.” The court took up this issue, it noted, in response to “several grisly moments” in the United States’ recent history of capital punishment. Particularly important was the April 2014 execution of Clayton Lockett, a convicted murderer who writhed and grimaced for 43 minutes after his lethal injection began.
Two days before the Supreme Court’s announcement, a leaked video of an execution in Saudi Arabia made headlines around the world. This video, CNN reported, showed the beheading of a woman “accused of raping her 7-year-old stepdaughter with a broomstick and beating her to death.” She was one of 10 people beheaded in Saudi Arabia so far this year. Even as Saudi officials explained that beheadings are an integral part of the Islamic legal system, human rights groups condemned them as barbaric and called on the international community to ramp up pressure on Saudi Arabia to end its brutal punishments.
The juxtaposition of the barbarism of beheading in Saudi Arabia and the American quest to avoid grisly punishments and ensure that executions are humane would appear to validate what some scholars have called the civilizing hypothesis. In this view, the way society punishes is a crucial indication of how civilized it is. Backward, uncivilized societies aim their punitive processes to inflict pain on the body and use punishments to express collective moral outrage. In contrast, so-called civilized societies tether punishment to the attainment of rational, instrumental objectives and, more important, punish humanely and impose no more pain than is necessary when they do punish.
In this story, the United States’ embrace of capital punishment might be said to be an anomaly. Yet the constitutional prohibitions on cruel and unusual punishment and the search for methods of execution that are humane appear to offer some reassurance that the United States can continue to impose the death penalty and still claim the mantle of civilization.
The recent history of capital punishment in the United States evidences the search for methods of execution that allow the U.S. to continue to execute but to do so in a way that would never be grisly. Over the course of the last century, capital punishment in the U.S. has moved from hanging to electrocution and the gas chamber and, since the early 1980s, to lethal injection. With the application of each new technology in the domain of capital punishment, the same claims have been made: namely, that each would be safer, more reliable and more humane than the method of execution it replaced.
But the quest for such a method has proved elusive. Over the course of the 20th century, 3 percent of U.S. executions were botched. Thus during some hangings, the condemned were strangled to death or beheaded. During some electrocutions, the condemned caught on fire. And as the Lockett execution demonstrated, lethal injection has a history of grisly mishaps. Lethal injection has proved the most unreliable of all America’s technologies of execution, with more than 7 percent of lethal injections botched.
Nonetheless, it’s time to recognize that there can be no reconciliation of the death penalty and claims of civilization. In July, 9th Circuit Court of Appeals Judge Alex Kozinski gave voice to this recognition, saying, “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.” He concluded, “If we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.”
Kozinski is a death penalty supporter; in fact, in the same statement, he wonders whether a firing squad might be a more effective means of execution. Any attempt at such an assessment, I would argue, is ultimately a fool's errand.
Human rights groups are right to call Saudi Arabia’s public beheading barbaric. But Kozinski does have a point. Americans should acknowledge that even the most allegedly humane forms of capital punishment are savage. They are unworthy of a society that seeks to call itself civilized.