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Wednesday, June 10, 2015

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.

Posted by Corinna Lain on June 10, 2015 at 04:50 PM in Criminal Law, Culture, Law and Politics | Permalink


Judge Kozinksi is appreciated, but do think he is using his personal sentiments here a bit more than overall constitutional applications over time. He notes they are "brutal, savage events" and so they are, but there are levels of brutality, levels of savage. Why not draw and quarter if it just is all "horrendous brutality"? Sherman's comment about war is true ("it is hell") but we have (and had then) restraints.

Criminal justice is a horrible business. We should that. In the future, I think people will look to our policy of locking people in cages as savage. But, we try to make the best of it, knowing we only can do so much. The effort is not worthless.

Finally, yes, "cruel and unusual" is not just about the person being punished. It is partially about us. As is treatment of detainees in GITMO etc. The problem I have here is that shouldn't lead us to worsen the situation for the person being punished. And along with the negative effects on the medical community, lethal injection has problems there. I'm not upset at the attempt really but it isn't working well.

Posted by: Joe | Jun 11, 2015 2:13:51 PM

Richard, thank you, this is so helpful. Thus far, my thinking has tended to focus on the extremes--it's problematic both to hide the violence and also to force it upon us--and that's because it's so hard to find that middle ground. But I think you've hit the mark here and shown me that it's worth trying to do, certainly worth thinking more about. Thanks!

Gloober, I've been chewing on these ideas since November, and indeed workshopped them twice before my post of last week, or your comment following it. I agreed with your comment then, and still do, but rest assured, this post had nothing to do with it.

Posted by: Corinna | Jun 11, 2015 1:25:36 PM

Corrina: One possibility is that your and Judge Kozinski's point is about having the "right" attitude toward capital punishment, even assuming the punishment itself is legitimate. There may be a kind of virtue or golden mean concept at work here: the punishment shouldn't be enjoyed, but neither should it be made light of. Two other versions of the right attitude come to mind. One is the Just Executioner, who basically thinks: "This is grim stuff, but this much--and no more--is morally necessary." The other is the Utilitarian Executioner, who says to herself: "It is a bad thing to kill another person, but it's even worse to leave serious crime undeterred." Any of these approaches would counsel in favor of limiting the violence of punishment and, for example, avoiding a Hunger Games scenario. But they also would demand that a certain amount of violence remain a central part of punishment.

Posted by: Richard | Jun 10, 2015 9:45:22 PM

Thank you.

Thank you for turning my comment of last week into a longer post without attribution -- but with a Hunger Games reference!

Thank you.

Posted by: Gloober | Jun 10, 2015 7:00:09 PM

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