America’s death penalty system is in crisis. Its severity was vividly on display Wednesday when the U.S. Supreme Court took up the case of Glossip v. Gross, a challenge to Oklahoma’s use of the drug midazolam as a component of lethal injection.
On April 29, 2014, Oklahoma’s botched lethal injection of Clayton Lockett brought dramatic attention to what was once believed to be a safe, reliable and humane method of putting someone to death. Lockett died of a heart attack 43 minutes after the first execution drug was administered and after a series of frantic attempts to find a useable vein. He groaned, writhed, lifted his head and shoulders off the gurney and said “man.”
The case highlighted the vain effort of states to find drugs that can be relied on to do the business of killing humanely. So serious are the problems with the death penalty system and with lethal injection that Dr. Jay Chapman, the pathologist who pioneered this method of execution, now says that he has “revised his view of capital punishment” and has serious doubts about whether it should continue to be used.
With medical heavyweights such as Chapman criticizing the suitability of midazolam for use in executions and with the bulk of scientific evidence now suggesting that midazolam cannot be used “to maintain adequate anesthesia” during an execution, Oklahoma has been forced to rely heavily on the expert testimony of Dr. Roswell Evans, dean of the school of pharmacy at Auburn University, to support its execution protocol and its use of midazolam.
Despite never himself having used the drug on a patient or had any experience with anesthesia, Evans testified in the district court that first considered the Gross case that inmates given midazolam “would not sense pain” during an execution. Junk science reached a new low when he supported this assertion by relying almost exclusively on citations from a consumer website, drugs.com, a website that offers the disclaimer that it is not intended to provide “medical advice.”
The claims of so-called experts in the science of pain should warn us that the constitutional status of the death penalty in the United States has tended to turn on the question of whether we can know for sure whether the condemned suffer when they are executed. But can we really answer this question? And, even if we could, is it the right question?
Does the Eighth Amendment’s ban on “cruel and unusual punishment” require us to depend on science to reveal the pain of those we execute? Or is the effort to answer that question inevitably going to evince the confused rhetoric that was on display in Wednesday’s oral argument? (Supreme Court Justice Samuel Alito, for instance, went so far as to contend that the Gross case was one part of “a guerrilla war against the death penalty,” in which opponents try to deny states the drugs that could carry out executions with little or no pain, such as those used in assisted suicide.)
This doubt and confusion can neither be put to rest nor alleviated. Pain “has no voice,” Harvard English professor Elaine Scarry observes in “The Body in Pain: The Making and Unmaking of the World”:
When one hears about another’s physical pain, the events happening within the interior of that person’s body may seem to have the remote character of some deep subterranean fact, belonging to an invisible geography.
The constitutionality of capital punishment should not depend exclusively on whether there is a painless method of execution, because that is a question we may never be able to answer. Rather, we must consider the damage the death penalty inflicts on America’s political and legal values. We know, for instance, that for every nine people executed in the U.S. since 1976, one person has been falsely convicted, condemned and subsequently exonerated — and that death sentencing has been impermissibly tainted by racial discrimination. We must gauge how such social harm measures up to America’s commitment to respecting the humanity of all citizens and its belief that no one’s worth or dignity can be measured simply in terms of his or her own worst act, no matter how heinous.
Displacing that inquiry and focusing simply on the pain of those we execute turns complex moral and political questions into questions of science. It pushes people such as Evans to the forefront of our most important constitutional controversies, where they do not belong.
Justice Elena Kagan got it right Wednesday when she asked whether it would be constitutional to burn someone at the stake after an anesthetic with debatable pain-killing properties. She answered her own question by saying, “Maybe you won’t feel it. Maybe you will. We just can’t tell.”