Is Lethal Injection About Us or Them?

 

I’ve been thinking a bit lately about lethal injection, about the ways it is problematic regardless of what the Supreme Court holds in Glossip.  I’m at the very early stages of a work-in-progress on the topic, and one of the things I’ve been quite drawn to is a passage from Chief Judge Alex Kozinski’s dissent from the denial of a rehearing en banc in Wood v. Ryan.

Here’s what he wrote:

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.

It’s worth noting that Judge Kozinski supports the death penalty (his essay “Tinkering with Death” presents a thoughtful and remarkably personal account of his views on the subject) so his position here can’t be written off as just another abolitionist trying to muck things up.  The pain inflicted on victims and their families is tremendous, he says, and society has a moral right to respond accordingly.  The point here is that we should at least be honest about what the death penalty is: brutality for brutality.  And if we’re not willing to accept that, we shouldn’t be doing it.

So here’s my question: is lethal injection about us or is it about them?  That is, is it about masking the brutality of executions so we don’t have to deal with the violence inherent in taking another life?  Or is it about providing the condemned with a relatively painless death, something they don’t deserve (at least by the measure of their own crimes) but can expect from a civilized society?

Perhaps it’s both, but the history of lethal injection suggests it’s a lot about us.  Oklahoma was the first state to adopt lethal injection, and its legislators did not ask how do we euthanize pets, how does physician-assisted suicide work, how can we do this as pain free as possible.  It was 1977, and the Supreme Court had just brought back the death penalty the year before in Gregg v. Arizona, after having abolished it in Furman v. Georgia in 1972.  Legislators worried that the American public wouldn’t have the stomach for executions the old fashioned way—hanging, electrocution, gas (firing squad made a famous appearance in 1977 but never really got off the ground). They needed something that wouldn’t jar the public, something that looked much more peaceful, civilized.  The answer was what would become the standard 3-drug lethal injection protocol.

I’ve been chewing on the democratic accountability point Kozinski makes at the end of the above passage:  “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.”  We should own it, and that means we shouldn’t be executing in a way that people associate with putting down a beloved pet.  It seems to me he’s on to something here.

But how far do you want to take this?  one of my colleagues asked.  I mean, one could go all Hunger Games on this thing, and make people watch executions on a huge screen.  The more blood the better. 

That’s not what I have in mind, but there is something to recognizing that the death penalty is inherently violent.  It has to be; it’s extinguishing life before the body would naturally have it end.  And there is something to recognizing that lethal injection hides that fact, and indeed was designed for the very purpose of hiding that from us to make it more palatable.