Category: The Death Penalty and Methods of Execution

Comparison of Capital Punishment in China and the United States

IDST 190 WordPress Assignment: Comparison of Capital Punishment in China and the United States

By: Andrew Phelan, Esten Walker, & Jennifer Zhou

The use of capital punishment worldwide is certainly on the decline, but in two of the most developed countries in the world, the United States and China, the death penalty is still heavily embedded in each respective justice system. This article will provide a background of the evolution of capital punishment in the U.S. and China, the science of varying methods, and its ethical implications.

The United States and China both have very different cultural evolutions in regards to capital punishment. The motivations behind each country’s usage of execution began entirely differently, however, in the modern age of capital punishment, the rationale of each country’s implementation is more closely aligned. Differences between Chinese and Western attitudes on the ethics of the death penalty stem from unique, deep-rooted value systems. In China, deterrence is the most important justification for the death penalty, whereas the U.S. typically supports it as a form of retribution. [8]

The history of capital punishment in the United States began as the Europeans colonized the new world. [4] [6] British influence is considered to be the foundation of capital punishment in the U.S., which entailed hangings for severe crimes such as spying and treason, or mundane offenses as minor as stealing. [4] As American society evolved and progressed, execution was popularized on plantations, and used for slaves who acted out or attempted escape. [6] More time passed, and the United States shifted from requiring capital punishment for certain crimes to a more discretionary approach, allowing the justice system to determine whether or not a crime committed merited capital punishment. [6] This change occurred around the 1830s, and was considered a “great reform”.

While the methods of execution have evolved since the 1830s, the basis of execution has not changed very much, and the legality and culture of the death penalty has been in question for centuries. Even today there is a large divide between those who feel it is just and those that do not, which is exemplified by the fact that the death penalty is illegal in 20 states and legal in 30 [7]. The feelings towards execution are largely state by state, and the constitutionality of the death penalty has arisen numerous times in the history of its usage in the United States.

The U.S., public opinion has been a fundamental ethical justification for retention of the death penalty. In the U.S., the “voice of the people” is not overlooked, and the existing liberal parliamentary democracy is attentive to public opinion for electoral reasons. Moreover, the U.S. Supreme Court views the public opinion as a barometer for deciding whether the death penalty violates “evolving standards of decency”. [12] Ellsworth and Gross predict that “if a clear majority of Americans comes to reject the capital punishment, the supreme Court, if not Congress and the state legislatures, will soon follow suit.” [5] In this sense, as long as citizens are educated and active on the matter of the death penalty, the democratic nature of the legal system seems, at least at surface level, ethically sound and justifiable.

Ethical debates in the U.S. have less to do with whether the act is right or wrong, and more to do with the efficacy of the method employed and the implications for the physician/administrator. [16] Lethal injection is the accepted method used for the death penalty. Since 2009, there has been criticism with a new drug substitute, midazolam, used in the three-drug lethal cocktail. It is association with botched executions. Jay Chapman, the father of the lethal injection, argues that the blame for botched executions lies with the individuals who administer the injections. [5] This puts a serious burden on the physician. Within the landscape of biomedicine, physicians are ethically directed to do no harm to their patients. Should physicians be prohibited and protected from participating in components of the death penalty? The question has garnered much attention and continues to be debated.

China’s practice of using the death penalty began much differently, as Chairman Mao Zedong implemented the death penalty as a means of squashing political upheaval. Zedong deployed capital punishment in the early 1950s as a populist tool for class struggle, political depression, and ideological control [12]. Mao viewed the counter-revolutionaries as enemies of the state and of the Mao regime. Because of this, the rebels were subject to the death penalty whereas the majority of the population could be treated with education or persuasion [11]. The penalties for a supporter of Mao were much less stringent than those of a counter-revolutionary who committed an equivalent crime.

Mao used execution as a political tool to scare those who did not align with his views out of acting. He used firing squads to intimidate his opposition and he viewed the death penalty as an instrument to building a stronger regime. The culture and public perception surrounding the death penalty was almost something of reverence. Mao was so successful at discouraging wrongful behavior with the use of the death penalty that when he died in 1976, crime was at such a low point in the China that people were able to leave doors unlocked with no fear of theft. [11] Mao’s executions were made public and transparent, another way that Mao ensured the majority did not revolt against his regime. [12]

Although China is not a democracy, the opinion of the masses has been used to reinforce implementation of the death penalty. Oberwittler and Qi argue: “The Chinese state provides a punitive culture to its citizens which contributes to and reinforces popular attitudes.” [12] China has a traditional belief that the death penalty can educate and deter people from committing crime. [8] Confucianism and Legalism are two prominent schools of thought in China which shape these punitive attitudes. [12] Confucianism emphasizes good morality as a way of reaping good behavior in society, and it is deemed useful for crime prevention. During early Chinese communist authority, minorities or opponents of the law were scrutinized and subjected to harsher punishments, including the death penalty. While civic engagement might keep the government accountable for corruption, in reality “it has also been detrimental to judicial and legislative efforts to restrain China’s profligate use of capital punishment as a sanction” in the sense that minorities are oppressed and the people are coerced into abiding by “strike hard” policies. [11]

On the other hand, Legalism highlights the need for harsh laws to limit chaos in society. In combination, these ideologies have bred a “strike hard” policy when it comes to criminal law. Multiple “strike hard” campaigns were launched in the late 1900s, and they used the death penalty as a threat against crime and aimed to instill fear in citizens not to disobey. But, it’s worth noting that the death penalty can be imposed on both violent crimes, like murder, and non-violent crimes such as economic malpractice.

In the post-Mao era, China pursued a path of “socialist modernization” and crime did pick up again, and China expanded its usage of the death penalty to dissuade illegal acts. China no longer saw the death penalty as a political tool, but a means of controlling the public and reducing crime. In 1979, China listed 28 capital offenses in its constitution. By 1995, China expanded the list of capital offenses to 74. In 2015, it was estimated that China authorized executions of four times more criminals than the rest of the world combined. With such a tight grip on media and public information, the Chinese government does not seem to get much pushback within its borders in connection to its abnormally high rate of execution, although information is difficult to obtain with regards to this topic. Defectors of China do indicate, however, that the death penalty is relatively accepted in China, and is simply a part of the culture. Laws are strict and heavily enforced, and many simply do not question and obey.

Places for potential ethical concern in China’s “strike hard” legal outlook have been met with current debates on what constitutes severe and swift punishment. [14] On January 1, 2007, the authority to review and approve all death sentences was given to the Supreme People’s Court (SPC), after having previously resided in provincial courts. This change in authority has dramatically reduced the scale of the death penalty. The SPC intends to limit the death penalty to “all but the most egregious criminals” and is focusing on “balancing leniency and severity.” The problem now is defining which deaths are justified and which might be an over-extension of Chinese authoritative power.

While the ethical and cultural considerations drastically differ between the two countries, the science behind the executions is universal. Both China and the United States have the same process for lethal injection—a three-drug combination: Anesthetic (usually thiopental or pentobarbital), pancuronium bromide (usually Pavulon), and potassium chloride. The general anesthetic dosage is 3 grams. A normal dosage can make an adult lose consciousness in less than 30 seconds. Pavulon is a non-depolarizing muscle relaxant that blocks the delivery of acetylcholine at the intersection of neuromuscular ends, which causes contraction of muscle fibers; as non-depolarizing drugs prevent this. [4] A dose of Pavulon in a fatal injection is usually 40 mg and the duration of muscle relaxation is about 4-8 hours. Paralysis of the respiratory muscles will cause death in a much shorter period of time. [4] The last step is to inject potassium chloride.  Potassium chloride stimulates the heart muscle, and the heart beats quickly, causing other drugs to quickly spread throughout the body, helping accelerate the medical effect. [4]

Before the execution process, the prisoner is taken into the executive room and the executor attaches the prisoner to the injection bed. Then, the executor connects him/her to the heart-rate-measuring instrument. First, the practitioner plunges the needle connected to the syringe pump, into the venous blood vessels of the prisoner. Then, the executor adjusts the syringe pump appropriately. After the execution order is issued, the executor presses the injection button on the syringe pump and the drug begins to be injected into the prisoner. Soon, the brain waves on the computer display changes from regular fluctuations to several parallel lines. [18] Finally, the forensic doctor confirms the death of the prisoner according to the heartbeat and breathing. [18]

Most of society agrees that lethal injection is the most “humane” method of execution, so it became common in many states. However, the lethal injection method is facing a problem: drug shortage. Many drug manufacturers stopped selling these drugs for use in executions because they think lethal injections “create an unacceptable risk of severe pain”. As mentioned earlier, some drugs, like midazolam, are sometimes insufficient. Botched executions are always a possibility given the limitations of the efficacy of the drugs at hand. [5] States have continued to search for different drugs to safely replace the cocktail of euthanasia drugs which exist today. [10]

In the U.S., states have responded to the drug shortage by listing alternative execution methods. While no state has actually had to use any of the alternative methods this century, it is still important to be cognizant of their inclusion in the law. Alabama, Arkansas, Florida, Kentucky, Mississippi, Oklahoma, South Carolina, Tennessee and Virginia currently list the electric chair as an alternative method of execution, even though it is not practiced. [13]

There are four steps for the electric chair execution: preparation, confirmation of execution, electrocution, and corpse treatment. Preparation usually starts in the early hours of the morning. The prisoner is brought up from the death row, bathed and shaved where the electrode will be placed during execution. Under normal circumstances, the calf should be shaved to ensure the smooth flow of current. The electric chair is made of wood with a belt to secure the prisoner. The prisoner sits on the chair and the wrist is fixed on the armrest of the chair.  The legs, waist, chest, chin, and forehead will also be strapped to the electric chair. The electrode above the electric chair is pulled down, covering the prisoner’s head, and fixed by a belt that holds the prisoner’s chin. The prisoner’s shaved calf was also fastened to the electrode. [4] During the electrocution, the executioner energizes the electric chair and the first current passes through the prisoner, with voltage between 1700 and 2400 volts. [19] The electric current lasts 15 to 60 seconds (depending on the state) and uses between 5 and 8 amps. It passes through the brain and completely destroys the nerve system within 1/240 seconds of energization, causing the prisoner to fall into a coma and not feel the subsequent pain prior to death. After a complete electric shock process, a doctor checks the prisoner’s vital signs. If the prisoner still shows signs of life, the entire electric shock process is repeated until the prisoner displays no signs of life. After the execution, the prisoner’s skin becomes red, and some parts are slightly burned. At this time, the temperature of the body can reach 140 degrees Fahrenheit, so the body cannot be transported immediately after the shock is administered. [19]

In China, gun firing squad was the only nationally endorsed method of execution until 1997, when the lethal injection was introduced. Shootings were somewhat of a political spectacle, they are inexpensive, and are also highly effective at executing criminals. Moreover, public executions helped reinforce the punitive culture associated with the Chinese legal system. In contrast, the cost of a single injection is significantly more expensive than shooting, and the resources required are extensive. Many intermediate courts do not have a complete executive room and vehicle. Therefore, in some Chinese provinces, the death penalty is still dominated by shooting. Firing squad is largely utilized as punishment for major crimes such as murder, extortion, rape, and drug trafficking, as well as other criminal laws that endanger the country and its people. [16] These crimes qualify for firing squad execution because of their extremely cruel nature and social impact. [16]

There are two firing squad execution methods. In the first method, the prisoner squats against the executioner and the executioner shoots at the prisoner’s head or the back of the heart. If shot in the head, a person’s brain tissue will be damaged beyond function, and the brain cannot convey essential activities to the rest of the body. [4] When a prisoner is shot in the heart, their body no longer has the ability to transfer blood and the body shuts down. [4] The second method is where the prisoner stands and faces the executioner. The executioner then shoots the prisoner in the chest, most commonly the heart, and the result is the same as method one. The body can no longer transfer blood and the victim passes. For both methods, if the prisoner has not yet died, he/she will be shot at the critical body part until he/she dies. In the process, the prisoner will suffer excruciating pain which is the downside of the gun fire squad method. [17]

Culturally, the United States has softened slightly as time has gone on, and the harshness of the means of death has been lessened. From the beginning, public hanging was seen as a legitimate means of sending a message as well as fair retribution for those who committed criminal acts [4]. Later on, certain states began using the electric chair. Still painful, but it was quick and executions no longer took place in the public realm. Cyanide and gas chambers became an option in the early 1920s, and were introduced by the Nevada justice system [4]. This was thought to be more humane than the electric chair, but still was not necessarily void of  “cruel and unusual punishment” as one California court described. By the late 1970s, all states where execution was legal mandated lethal injection as the more humane and effective way of killing criminals, but this is still a controversial means of execution because of conflicts with many doctors’ code of ethics. [3]

Conversely, China’s execution methods have remained fairly consistent over time, reflecting the importance the Chinese place on appropriate behavior and attention to laws and regulations. Since the 1950s when capital punishment was instituted in China, its purposes and cultural meanings did change slightly, however, the methodology only evolved when science offered an opportunity to do so. One important consideration is that China does not have the multi-century history that the United States does when examining the use of the death penalty.

Generally, one could argue that the Chinese evolution of capital punishment is similar to the United States, just hundreds of years behind. The United States was slightly less political in its approach to public execution, however, hanging is arguably a more aggressive and harsh means of killing an outlaw. Mao’s usage of the firing squad was public and cruel, but was largely used for political purposes. As each country moved towards the 21st century, lethal injection was at the forefront of execution methods, considered to be humane, painless, and effective. Nonetheless, the ethical implications and feelings of killing another human being are still hotly debated. The United States is very open about the controversy, whereas China is quiet and cryptic, especially with such a tight grip on censorship and public record. As society expands and advances, the topic of capital punishment will surely continue to be contested, and the future of the death penalty could certainly be in jeopardy, but until nationally supported execution is abolished across the world, the scientific, ethical, and cultural questions will remain.

Bibliography

[1]Barnes, Dustin. “What Methods of Execution Are Still in Practice in the United States?” The Tennessean. Accessed April 8, 2019. https://www.tennessean.com/story/news/crime/2018/10/09/methods-execution-state-electric-chair-firing-squad-hanging-gas-chamber/1576763002/.

[2]Caplan, Arthur L. “Finding a Solution to the Organ Shortage.” CMAJ : Canadian Medical Association Journal 188, no. 16 (November 1, 2016): 1182–83. https://doi.org/10.1503/cmaj.151260.

[3]Cheng, Jesse. “HUMANITY’S SUBTENSIONS: Culture Theory in US Death Penalty Mitigation.” Social Analysis; Oxford 61, no. 3 (Autumn 2017): 73–90. http://dx.doi.org.libproxy.lib.unc.edu/10.3167/sa.2017.610305.

[4]“Descriptions of Execution Methods | Death Penalty Information Center.” Accessed April 8, 2019. https://deathpenaltyinfo.org/descriptions-execution-methods.

[5] Ellsworth, P.C., & Gross, S.R. (1994). Hardening of the attitudes: Americans’ views on the death penalty. Journal of Social Science, 50, 19-52. https://www.newsweek.com/jay-chapman-inventor-lethal-injection-arkansas-592506

[6] Garland, David. “The Cultural Uses of Capital Punishment.” Punishment & Society 4, no. 4    (October 1, 2002): 459–87. https://doi.org/10.1177/1462474502004004050.

[7]Hood, Roger, and Carolyn Hoyle. The Death Penalty: A Worldwide Perspective. OUP Oxford, 2015.http://vb3lk7eb4t.search.serialssolutions.com.libproxy.lib.unc.edu/?ctx_ver=Z39.88-2004&ctx_enc=info%3Aofi%2Fenc%3AUTF-8&rfr_id=info%3Asid%2Fsummon.serialssolutions.com&rft_val_fmt=info%3Aofi%2Ffmt%3Akev%3Amtx%3Abook&rft.genre=book&rft.title=The+death+penalty+%3A+a+worldwide+perspective&rft.au=Hood%2C+Roger+G&rft.date=2008-01-01&rft.isbn=9780199228478&rft.externalDBID=n%2Fa&rft.externalDocID=mdp.39015079170463

[8]Jiang, Shanhe, Eric G. Lambert, and Jin Wang. “Capital Punishment Views in China and the United States: A Preliminary Study Among College Students.” International Journal of Offender Therapy and Comparative Criminology 51, no. 1 (February 2007): 84–97. https://doi.org/10.1177/0306624X06294138.

https://journals-sagepub-com.libproxy.lib.unc.edu/doi/pdf/10.1177/0306624X06294138.

[9]Kunter, Max. “Meet A. Jay Chapman, ‘Father of the Lethal Injection.’” Accessed April 8, 2019. https://www.newsweek.com/jay-chapman-inventor-lethal-injection-arkansas-592506.

[10]Levine, Caroline. “State Resources and Compliance with the Eighth Amendment.” The Federal Lawyer State & Local Government (February 2016). http://www.fedbar.org/Resources_1/Federal-Lawyer-Magazine/2016/JanuaryFebruary/Columns/State-and-Local-Government.aspx?FT=.pdf.

[11]Miao, Michelle. “Capital Punishment in China: A Populist Instrument of Social Governance.” Theoretical Criminology 17, no. 2 (May 1, 2013): 233–50. https://doi.org/10.1177/1362480613476788.

[12]Qi, Shenghui, and Dietrich Oberwittler. “On the Road to the Rule of Law: Crime, Crime Control, and Public Opinion in China.” European Journal on Criminal Policy and Research 15, no. 1 (June 1, 2009): 137–57. https://doi.org/10.1007/s10610-008-9094-3.

[13]“State by State Lethal Injection | Death Penalty Information Center.” Accessed April 8, 2019. https://deathpenaltyinfo.org/state-lethal-injection.

[14]Trevaskes, Susan. “The Death Penalty in China Today: Kill Fewer, Kill Cautiously.” Asian Survey; Berkeley 48, no. 3 (June 2008): 393–413. http://dx.doi.org.libproxy.lib.unc.edu/10.1525/as.2008.48.3.393.

[15]Whalen, Jeanne, and Nathan Koppel. “Lundbeck Seeks to Curb Use of Drug in Executions.” Wall Street Journal, July 1, 2011, sec. Business. https://www.wsj.com/articles/SB10001424052702304584004576419092675627536.

[16]Zivot, Joel B. “The Absence of Cruelty Is Not the Presence of Humanness: Physicians and the Death Penalty in the United States.” Philosophy, Ethics, and Humanities in Medicine 7, no. 1 (December 3, 2012): 13. https://doi.org/10.1186/1747-5341-7-13  .

[17]“在中国,死刑犯都是怎么死的?.” 知乎专栏. Accessed April 8, 2019. https://zhuanlan.zhihu.com/p/35119953.

[18]“枪毙_百度百科.” Accessed April 8, 2019. https://baike.baidu.com/item/%E6%9E%AA%E6%AF%99/1929562?fr=aladdin.

[19]“注射死刑_百度百科.” Accessed April 8, 2019. https://baike.baidu.com/item/%E6%B3%A8%E5%B0%84%E6%AD%BB%E5%88%91/10531001?fr=aladdin.

[20]“电椅(刑具)_百度百科.” Accessed April 8, 2019. https://baike.baidu.com/item/%E7%94%B5%E6%A4%85/5499561.http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11706542/US-Supreme-Court-backs-use-of-controversial-lethal-injection-drug.html

Hanging, Electrocution, and Shooting: Death Penalty Methods Compared

Across the globe, the movement to abolish the death penalty has gained momentum over the past few decades, and with it is an intense debate over which methods executioners should use to execute prisoners. This post will compare three specific methods of the death penalty hanging, electrocution, and shooting and outline the details and arguments for each method from a cultural, scientific, and ethical standpoint. Only certain countries around the world still retain capital punishment, such as hanging in India, electrocution in the United States, and shooting in China.

 

In India, the death penalty is still alive and well. However, there is no official data or statistics regarding execution in India. 1 Executions were almost completely halted from 1995 to 2012, whereas from 1985-1995, the number of executions averaged three per year. India has always voted against the United Nations General Assembly resolutions to rid of death penalty among other countries in Asia, and in 2012, three men were executed for terrorism-related charges.2 The country fails to recognize that the death penalty is inhumane and a violation of human rights. The two main reasons for imposing punishment are as follows: the wrongdoer should suffer for the crimes they have committed, and by imposing punishment on wrongdoers, there is a hope that others will be discouraged from committing wrongful acts, as well. Offenses wrongful enough to permit the death penalty include criminal conspiracy, murder, anti-terrorism, waging war against the government, and even rape.3

 

The world’s most frequent executioner is China. In 2010, China put more prisoners to death than the rest of the world combined. It is estimated that China kills about 5,000 prisoners annually, and most of these death sentences are carried out by lethal injection or a gunshot to the head.4 China’s frequent use of death penalty is due to the troubled court system, as well as a national policy that allows capital punishment for crimes that would not be considered to warrant the death penalty in other countries.4 These offences include corruption, embezzling, drug-related crimes, and even theft on a large enough scale. In one case, a Chinese telecommunications executive was sentenced to death for accepting bribes.4 Shooting and lethal injection are the only two methods authorized by China’s Criminal Procedure Law of 1996.5 As of 2010, shooting executions have been discontinued, and lethal injection has been declared a more humane form of execution. Also, lethal injection is cheaper than a firing squad. This factor, as well as the profit, ease of secrecy, and reduction of family complaints due to massive disfigurement caused by shots motivated the switch-over to lethal injection.5

 

The United States ranks fifth in the world for the amount of executions performed each year, and is the only developed Western nation that uses the death penalty.4 The United States is unique in that each state applies its own criminal law, so while some states have abolished the death penalty, other states have not. Of the fifty states, twenty have abolished the death penalty, as of 2014.6 The states that use electrocution as method of execution are Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia. Only Oklahoma and Utah use execution by firing squad, and only New Hampshire utilized hanging as a method of death penalty. Electrocution was decidedly a more humane and quicker alternative to hanging. However, this method can inflict unnecessary pain, indignity, and physical mutilation (e.g., severe external burning and bleeding). Outside of the United States, electrocution has not been widely adopted. Although lethal injection is the more popular method of the death penalty, many inmates prefer an alternative method due to the high rate of botched executions over the years.7

 

Inmate waiting to be electrocuted in the chair in late 19th century.   https://www.britannica.com/topic/electrocution

These three forms of execution can also be examined from a scientific angle through a comparison of how each method kills the victim’s body, how they can be botched and medically prolong death, and which can lead to the most physical pain. First, death by shooting can cause death in a variety of ways depending on the guns used and the location of the bullet wound, but in ideal circumstances, this method is the most instantaneous and painless. In the United States’ method of the firing squad, the doctor locates the inmate’s heart and marks it for the five executioners, who each aim for the chest area, because it’s both a cleaner death than a headshot and provides a larger area for the shooters to aim their guns.9 The bullets rupture the heart and the prisoner quickly loses consciousness from hydraulic shock to the body fluids and the lack of blood flow and oxygen to the brain.10 The damage to the cardiovascular system results in death by blood loss in a matter of minutes.

 

However, in countries such as China, execution is carried out through a single shot to the neck instead of a firing squad aiming for the heart, as the brain stem is technically the fastest way to kill the body: the heart and respiration stop functioning almost immediately. North Korea uses multi-barrel anti-aircraft cannons, which also allow for faster death. In the case of a botched execution, wherein the prisoner moves or the shooters miss, the prisoner bleeds to death and endures a lengthier time of suffering. In the case of two Nigerian drug traffickers in Indonesia in 2008, the executioners aimed for the heart from a meter away and narrowly missed the heart, causing the traffickers to suffer and bleed to death for ten minutes.11

 

Scientifically, the method of execution by the electric chair also does a variety of things to lead to the body’s fatality. The prisoner is hooked up to electrodes and 2000-2500 volts of electricity are sent through a cable, first reaching a saltwater-soaked sponge and copper cap resting on the head to facilitate the electrical current to the skull. The skin can reach a temperature of up to 200 degrees, and such a sudden jump in body temperature can cause tissue to swell and skin to melt rapidly. The circuit passes through the muscles, veins, the brain, and legs in a first attempt to bring the victim to unconsciousness. Fifteen seconds pass, and a second current is applied to ensure death of the vital organs.12 Little medical research has identified how specifically electrocution kills the body, but many attribute death to cardiac arrest, followed by brain paralysis. Most cases require multiple jolts for 15-30 seconds each to conduct full execution, and the body has to be strapped in securely to prohibit contortion and convulsion. The patient’s eyes often have to be taped shut, as the electric current causes tissue swelling and the eyeballs to pop out of their sockets.13 Electrocution is much more commonly botched than firing squads, as it relies on more factors to shut the body down. In some cases, the first jolt fails to kill the victim, but the body needs several minutes to cool down before the physician can check if they are still breathing, in which case more jolts must be applied. Sometimes, the executioners do not hook up the cables correctly, so the current cannot be distributed appropriately. In others, the voltage is too high or too low, causing the skin to cook, smoke, or catch fire while organs such as the heart are still functioning.14 Repeated electrocution attempts are conducted until the victim is no longer breathing and without a heartbeat, which can last for long bouts of time as the patient suffers from burning flesh and internal organ damage.

 

The method of hanging can lead to death through a number of scientific factors. Prior to execution, the length of the rope drop is measured depending on the prisoner’s body weight to see ensure that it will, by the laws of physics, actually kill him or her. After the rope is tied, the prisoner is dropped and would experience a fracture-dislocation in the neck due to the momentum, which ideally would kill the inmate on impact. The broken neck would lead to unconsciousness, leading to brain death.15 However, multiple factors can cause the execution to go wrong in regards to the rope, and varying factors such as the person’s weight, height, and neck strength, could prevent instantaneous death. In cases such as these, the prisoner would most likely die from asphyxiation and suffocation as the oxygen cannot get to the brain and the veins and arteries are blocked.16 If the rope is too short, strangulation could turn into a long, slow process of suffering, sometimes as long as 10-45 minutes. During this time, the capillaries burst from the pressure build-up of blood in the carotids, blood pressure plummets, and the trachea is slowly being crushed by the noose, leading to intense amounts of pain and suffering. This leads to gruesome effects for viewers, including defecation, popping eyes, and an engorged face.17 In other cases, the inmate could be decapitated if the rope is too long and the fall too hard. While these three methods of execution may seem medically similar in that they all cause vital organs to cease, their risks to the body and the timing of their deaths actually vary greatly.

 

Out of the three methods of execution mentioned, the firing squad is the least nationally used, even though it is technically considered unconstitutional.23 But from an ethical standpoint, shooting as a method of execution seems to be the most morally and ethically sound option. A total of five people volunteer to perform the task and their identities are kept anonymous; these volunteers often include the police officers who were present when the prisoner committed the crime. In addition to their identities being unknown, the person who killed the prisoner remains unknown, as well, in such that one volunteer’s gun contains a blank round as to keep the person who killed the criminal a mystery. After the prisoner is executed, the organs that remain intact can be donated, unlike those from electrocution. Although the option of the firing squad seems to be the most painless and efficient form of execution, lawmakers in Utah decided that the firing squad would no longer be an option as of 2004 because the media coverage these executions received took the attention away from the victims.18

 

Electrocution as a form of execution, while one of the most frequently used methods, it is one of the most unethical, in that a prisoner must continue to be shocked with fifteen second intervals in between to assure death. Austin Sarat’s book, Gruesome Spectacles, contains statistics regarding methods of execution and the amount of which were botched.19

 

Method Total Executions Botched Executions Botched Execution Rate
Hanging 2,721 85 3.12%
Electrocution 4,374 84 1.92%
Lethal Gas 593 32 5.4%
Lethal Injection 1,054 75 7.12%
Firing Squad 34 0 0%
All Methods 8,776 276 3.15%

https://deathpenaltyinfo.org/some-examples-post-furman-botched-executions

 

One person recalled watching their client, a man named Daryl Holton who had been convicted of killing his three children and a stepchild, be put to death by electric chair. He argued that while death is probably instantaneous in this method of execution, “the psychology torment that accompanies [it] is beyond description.”20 But originally, electrocution was meant to replace hanging as a more ethical method of killing.21 While the botch rate of electrocution is low, the moral ethics of this method of execution are questionable. A person watching a prisoner be killed in this manner will potentially watch said prisoner defecate, convulse, and burn from the inside out. In addition, because of the amount of electricity pulsing through the prisoner’s body, there is almost no chance of organ donations, as the organs will no longer be viable.22 The autopsies after these executions are delayed in order to allow time for the organs to cool down. The organs and body are burned and blackened to the point of the body being too hot to touch.21

 

The method of hanging as a death penalty is only legal in three states, but it is widely criticized because of the amount of botched executions. As stated before, making sure that a person’s weight is properly recorded and that the length of the rope is appropriate to body size is extremely important in making sure that the inmate being put to death does not suffer tremendously. Richard Dieter stated that “if hanging were the usual method, we probably would have done away with execution.”24 People believe that hanging is the quickest and easiest way to kill somebody, but it is also very hard for people to watch. Death by hanging has been the most widely practiced method of execution since executions became practiced worldwide, but to watch someone be hanged today is unheard of in the United States. Although hangings remain somewhat public in other parts of the world, the United States does not publicly show these deaths. Many body parts become engorged and the body will fight for life for as long as it can, but in relation to organ donation, hangings can provide viable organs, excluding the lungs.

 

Ghania Chaudhry

Hannah Fesler

Grace Towery

 

 

 

 

Works Cited

1.Alam, Muhammad Qadeer, “Capital Punishment in South Asia (India, Pakistan andBangladesh): A Legal Analysis,” PhD thesis. Middlesex University, 2017, http://eprints.mdx.ac.uk/21990/1/ MQAlam%20thesis.pdf.

2.Mehta, Divya, “Capital Punishment in India: Life, Death, and Rebirth?” Brown Political Review, December 30, 2016, Accessed April 08, 2019, http://www.brownpoliticalreview.org/ 2016/11/capital-punishment-india/

3.Swathi, M, and K. Roja, “A Critical Study on Capital Punishment in India,” International Journal of Pure and Applied Mathematics 120, no. 5 (2018): 911-922, Accessed April   08, 2019, https://acadpubl.eu/hub/2018-120-5/1/98.pdf.

4.Fisher, Max, “Capital Punishment in China,” The Atlantic, September 22, 2011, Accessed April 08, 2019, https://www.theatlantic.com/international/archive/2011/09/capital-punishment-in-china/245520/.

5.”Death Penalty Database,” The Death Penalty in China, Cornell Law School, April 10, 2014, Accessed April 08, 2019, https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=China.

6.”Death Penalty Database,” The Death Penalty in United States of America, Cornell Law School, April 10, 2014, Accessed April 08, 2019, http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=united+states+of+america.

7.Agorakis, Stavros, “Tennessee Death Row Inmate David Earl Miller Faces the Electric Chair Today,” Vox, December 06, 2018, Accessed April 08, 2019, https://www.vox.com/2018/12/3/18118175/tennessee-death-penalty-lethal-injection-electrocution.

8.Denno, Deborah W, “Electrocution,” Encyclopædia Britannica, February 09, 2012, Accessed April 08, 2019, https://www.britannica.com/topic/electrocution.

9.Williams, Joseph P, “The Firing Squad is Making a Comeback,” The Civic Report, March 3, 2017, Accessed April 7, 2019, https://www.usnews.com/news/the-report/articles/2017-03-03/the-firing-squad-is-making-a-comeback-in-death-penalty-cases.

10.Barnes, Dustin, “Methods of execution by state: Electric chair, firing squad, hanging,” Tenessean, October 9, 2018, Accessed April 7. 2019, https://www.tennessean.com/story/news/crime/ 2018/10/09/methods-execution-state-electric-chair-firing-squad-hanging-gas-chamber/1576763002/.

11.Forbes, Mark, “Priest relives firing squad deaths for court,” The Sydney Morning Herald, September 19, 2008, Accessed April 8, 2019, https://www.smh.com.au/world/priest-relives-firing-squad-deaths-for-court-20080919-gdsvjk.html.

12.Silva, Vania, “How does Electrocution Kill You?” The Naked Scientists, March 15, 2017, Accessed April 8, 2019, https://www.thenakedscientists.com/articles/science-features/how-does-electrocution-kill-you.

13.Jaun, Dr. Stephen, “What happens when you are executed by electrocution?” The Register, October 26, 2006, Accessed April 7, 2019, https://www.theregister.co.uk/2006/10/20/the_odd_ body_electrocution/.

14.“Botched Executions,” Death Penalty Information Center, 2019, Accessed April 7, 2019, https://deathpenaltyinfo.org/some-examples-post-furman-botched-executions.

15.Richard, Jeff, “What Happens to your Body When You are Hanged to Death,” Ranker, 2018, Accessed April 7, 2019. https://www.ranker.com/list/hanging-to-death-what-happens-to-your-body/jeffrichard.

16.“Hanging,” The Death Penalty. 2016, Accessed April 8, 2019, https://deathpenaltycurriculum.org/ student/c/about/methods/hanging.htm.

17.Richards, “What Happens to your Body When You are Hanged to Death.”

18.McCombs, Brady. “Utah’s Firing Squad: How Does it Work?” APNews, March 24, 2015, Accessed April 7, 2019, https://www.apnews.com/58559881d0f743009cfeb52196702382.

19.“Botched Executions,” Death Penalty Information Center, March 1, 2018, Accessed April 8, 2019, https://deathpenaltyinfo.org/some-examples-post-furman-botched-executions.

20.“Lawyer for the condemned: I witnessed what should be the last electric chair execution,” Raybin & Weissman, P.C., June 23, 2014, Accessed April 8, 2019, https://www.nashvilletnlaw.com/the-last-electric-chair-execution/.

21.“Descriptions of Execution Methods,” Death Penalty Information Center, Accessed April 8, 2019, https://deathpenaltyinfo.org/descriptions-execution-methods?scid=8&did=479.

22.Aldershof, Kent, “Do death penalty organs get donated for transplant?” Quora, March 9, 2017, Accessed April 8, 2019, https://www.quora.com/Do-death-penalty-organs-get-donated-for-transplant.

23.Basir, Safeena, “Ethics of Death Penalty,” The One Pager, October 24, 2013, Accessed April 8, 2019, https://sites.psu.edu/svb5533/2013/10/29/ethics-of-death-penalty/.

24.Reynolds, Dean, “Execution by Hanging Still Happens in the U.S.–But Is It Humane?”KTRE, July 26, 2007, Accessed April 8, 2019, http://www.ktre.com/story/5962024/execution-by-hanging-still-happens-in-the-us-but-is-it-humane/.

Death Penalty- History in the United States

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Though the death penalty has always been present in American history, the prevalence, methods, and support for the death penalty has changed over time. In 1791, the Framers of the United States Constitution created the Bill of Rights, intended to protect the civil liberties of citizens in the new nation[i]. Specifically, the 8th Amendment declares that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”[ii]. Yet despite this amendment, the death penalty continued to be used in the United States justice system as it had been under British colonial rule. At the time, the Founders were focused on the ethical principle of utilitarianism, making their decision based on what choice provides the most good to the most people. The death penalty was intended to deter citizens from committing crimes, punishing those who commit capital crimes to discourage other citizens from doing the same thing, in order to maintain structure within the country and protect public safety. At the end of the 19th century, two Supreme Court cases Wilkerson v. Utah (1879) and in re Kemmler (1890) upheld the constitutionality of death by firing squad and death by electrocution respectively[iii]. While the Founders of the Constitution focused on utilitarianism, by 1917 nine states abolish the death penalty for all crimes, demonstrating a commitment to the ethical principle of deontology. Individual states focused on respect for humans as ends rather than means, which made it difficult for them to justify the deterrent effect of the death penalty.

 

Hanging is one of the oldest components of the United States criminal justice system, as the earliest form of the death penalty used universally in the 19th century. Hangings were accompanied by a range of issues, including intense pain and failure to kill; however, these consequences were accepted as unfortunate, yet inevitable accompaniments to execution. As the decade progressed, the pain associated with hangings became increasingly disturbing to the audience and the methods’ issues became more and more prevalent. The invention of anesthesia in the 19th century allowed the minimization of pain; however, it never became widely used[iv]. After hundreds of years of hangings, Americans began to search for a more humane method.

 

As electricity was introduced into homes and workplaces in the late 1800s, the number of electricity caused deaths were on the rise. At the time, electricity was a new technology that’s dangers were unknown. As the hazards of electricity became clear, it was adapted for use in the criminal justice system. New York’s death penalty commission even consulted with Thomas Edison, who opposed the death penalty, but advised that electricity would be the fastest and least painful method for execution[v]. Ohio State Penitentiary guards used electricity as a form of punishment, creating a complete circuit with a tub of water, the inmate, and a battery[vi]. This led to the creation of the electric chair, officially introduced in 1889. New York became the first state to adopt this method and abandon hanging, and by 1950, 26 states had followed[vii]. This method proved to be very effective in pain delivery, and the medical opinion was that it was fast, painless, and humane. It was later discovered that the cause of death from electrocution is ventricular fibrillation, where the heart is prevented from pumping blood through uncontrolled contractions of the heart muscle[viii]. This method portrayed the high levels of scientific advancement at the time, and it was deemed superior to hanging. However, electrocution also had its faults, including causing deep burns on the inmates, and the mouth strap causing partial asphyxiation[ix]. This prompted the popularity of other methods.

 

There has been a lot of skepticism about the death penalty in the general public and through political figures. One of the first news stories about the death penalty happened in July of 1895 where they were writing about a doctor who received the death penalty. In this article, the author describes the execution very explicitly, writing that during the electrocution, “two contacts were made but all physicians and electricians claim that the second contact was merely precautionary”[x]. This explicit use of language surrounding the death does not persist in the media or culture as the death penalty becomes older and more debated publicly. Because of the smaller role of media during this time period, it is much more difficult to gauge the culture surrounding the death penalty during this time.

 

As American society progressed, there were multiple court cases that challenged the constitutionality of the death penalty, causing the Supreme Court to question the ethics of the 8th Amendment. Additionally, the 14th Amendment came into the equation. The 14th Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” [xi]. Furman v. Georgia (1972) involved a man who accidentally shot and killed the resident of a home after running away during an armed burglary. The Justices of the Court established no majority opinion, but decided 5-4 that the death penalty was cruel and unusual in this case, leading all death sentences pending at the time to be reduced to life imprisonments [xii]. However, the Supreme Court case of Gregg v. Georgia (1976) called the ethics of the death penalty into question again, arguing it violated both the 8th and 14th amendments. The case involved a person who was found guilty of armed robbery and murder by a jury and sentenced to death. The Court upheld this decision because Georgia created a new law that established the “bifurcated trial” which consisted of a guilt and penalty phase where lawyers presented both mitigating and aggravating factors for any potential death penalty [xiii]. The Court concluded that Georgia’s use of separate guilt and penalty trials demonstrate the state’s careful and judicious use of the death penalty, focusing on the nature of crime and the characteristics of the individual. As the nation’s justice system progressed, the Supreme Court upheld the ethics of the death penalty, focusing on beneficence, doing what is right, as well as justice, carrying out what people deserve.

 

As the Supreme Court transformed their view on the validity of the death penalty, there were also new methods of carrying out capital punishment. The gas chamber was first introduced in Nevada in 1921. The process takes place in an airtight gas chamber where the inmate is strapped to a chair over a container of sulfuric acid. The executioner then releases crystals of sodium cyanide into the container, which causes a chemical reaction that releases hydrogen cyanide gas, which the inmate inhales[xiv]. A doctor stands outside the chamber, in order to pronounce the inmate dead by using a long stethoscope. The cause of death of this method is hypoxia, the loss of oxygen to the brain [xv]. This method is still legal in five states as an alternative method to lethal injection[xvi].

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In the US today, lethal injection is the most common method of execution. The turn to this method reflects the United States growing reliance on medicine to eliminate the death penalty. Even though this is the most modern form of execution, it is still viewed as inhumane and unconstitutional. Most lethal injection process involves three drugs: sodium thiopental, Pancuronium bromide, and potassium chloride. These drugs are used respectively as an anesthetic to cause unconsciousness, a muscle relaxant that paralyzes the diaphragm and lungs, and a toxin that induces cardiac arrest [xvii]. However, it is possible for the initial anesthetic that causes the inmate to lose consciousness to fail, and for the muscle relaxant to mask the indications of consciousness in the inmate, leaving them in excruciating pain. If one’s veins could not be located, executioners would implement an intramuscular injection that is much slower and more painful than the usual delivery. Another issue present in the medical field is that lack of medical justification for lethal injection, yet a physician’s assistance is critical for safe administration. If the offender doesn’t want to deal with these risks, secondary options are available in seven of the death penalty states, including electrocution, lethal gas, hanging, nitrogen hypoxia, and firing squad[xviii]. Even though the science has improved to be able to facilitate and make the death penalty process more humane, its success is still questioned, leaving the search for a medically humane execution method ongoing.

 

As society progressed, Americans in the twentieth century focused on wanting “the death penalty applied more often and more quickly” [xix]. This public request to ensure that the death penalty was being used in an efficient way instead of something that was time consuming and not necessarily a guaranteed death. It seemed that during this time period “the death penalty seemed to be finally achieving what it was designed to do”, after years of issues and debate about the ethics[xx]. This change was due to a change in the methods of administration and an upgrade in technology in the methods of death.

People were also very concerned with the methods of death. The culture surrounding the death penalty and public opinion tended to be scared of new methods and scary technology. For example, a news article from 1982 talks about a fear of the “hi-tech death penalty of the future”, comparing the methods of lethal injection to methods in the “Nazi death camp experiments” [xxi]. These concerns stem from World War II and people’s desire for the United States to not “murder” it’s criminals and there were many protests surrounding these issues [5]. This issue of the public opinion about the method of injection lasted into the 1990’s. One example is an article written about a “switch to using lethal injection when imposing the death penalty” instead of more violent methods[xxii]. This article discusses the first execution in California following a break between 1967 and 1992. Essentially, the media was bringing back death penalty to the public eye and calling attention to the technology used, because “1920s technology didn’t always work as advertised” [xxiii]. As the technology improved, people became more approving of the death penalty being used because it seemed more ethically sound and humane, as people wanted in the United States culture.

 

As American society became more skeptical of the death penalty, the Supreme Court in recent cases has issued more liberal rulings protecting different groups of people from the use of capital punishment. In the 2000s, the Court issued several rulings that promoted an “evolving standard of decency”[xxiv]. Atkins v. Virginia (2002) dealt with a mentally retarded man who abducted and murdered a US airman, and Roper v. Simmons (2005) involved a seventeen-year-old who broke into a woman’s house and murdered her. In both of these cases, the Court concluded that executing mentally retarded people or juveniles is a violation of the 8th amendment[xxv]. The Court’s decision relied on the fact that executing juveniles and mentally retarded people will not advance the deterrent purpose of the 8th Amendment. Further, while capital punishment was previously used for any crimes the state deemed deserving of the death penalty, the Court concluded in Kennedy v. Louisiana (2008) that the 8th Amendment protects against disproportionate punishments, reserving capital punishment for murder[xxvi]. The Supreme Court’s rulings in America’s recent history show that ethically the Court is grappling with the idea of justice, giving a person what is due, owed, or deserved: finding that juveniles, mentally retarded people, and those who don’t commit capital crimes are not deserving of the death penalty.

 

The election of George Bush in 2000 was an affirmation that the people in the United States supported the death penalty because as the governor “had presided over 152 executions, the most of any modern governor at the time” [xxvii]. This shows that the culture had shifted and now a large majority of the United States supported the death penalty, as proven through the election of George Bush. In the years following this election, while people still supported the death penalty as a punishment for death, but when compared to a sentence of life without parole it was a pretty even split of 48% to 47%, with more people favoring life without parole [xxviii]. While the death penalty is still widely accepted as a form of punishment, just as many people believe that life without parole is a fair punishment. However, “the public retains some hesitation about [life without parole] because of the high costs of keeping someone in prison for life”, despite the fact that executions can be even more costly than life in prison [xxix]. The public may sometimes be slightly misinformed about the cost and methods of the death penalty; however, public support continues to be positive in regards to the culture surrounding the death penalty.

 

The Death Penalty was instituted in American society as a way to deter the public from committing crimes. Throughout this nation’s history, the methods and frequency of use of the death penalty has changed due to developments in technology, several rulings by the Supreme Court, and shifts in public opinion.

 

Endnotes:

[i] Epstein , Lee, and Thomas Walker. 2016. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Washington, DC: CQ Press.

[ii] Annaliese, F. F. (1999). Louisiana’s newest capital crime: The death penalty for child rape. Journal of Criminal Law & Criminology, 89(2), 717-750. doi:http://dx.doi.org.libproxy.lib.unc.edu/10.2307/1144141

[iii] Garland, D. (2011). The problem of the body in modern state punishment. Social Research, 78(3), 767-798. Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/940916022?accountid=14244

[iv] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.

[v] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.

[vi] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.

[vii] “States and Capital Punishment.” National Conference of State Legislatures. June 6, 2018.

[viii] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.

[ix] Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.

[x] “Dr. Buchanan Executed The Celebrated Poisoner Pays the Penalty for His Crime. Death Results Instantly.” Idaho Statesman (Boise, Idaho) 31, July 2, 1895: [1]. NewsBank. https://infoweb.newsbank.com/apps/news/document-view?p=AMNEWS&docref=image/v2:114CF38DF1A90B10@EANX-114D741DCBB373F0@2413377-114D741DD7256A40@0-114D741EF3FA2ED0@Dr.+Buchanan+Executed+The+Celebrated+Poisoner+Pays+the+Penalty+for+His+Crime.+Death+Results+Instantly.

[xi] James, Joseph Bliss. The Framing of the Fourteenth Amendment. Urbana: University of illinois Press, 1956.

[xii] Dukes, J. A., Sr. (2008). The effect of furman v. georgia on state death penalty legislation (Order No. 3339058). Available from Political Science Database. (275681992). Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/275681992?accountid=14244

[xiii] Berry,William W., I.,II. (2011). REPUDIATING DEATH. Journal of Criminal Law & Criminology, 101(2), 441-492. Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/867686956?accountid=14244

[xiv] Denno, Deborah W. “Gas Chamber.” Encyclopædia Britannica. January 16, 2019. https://www.britannica.com/topic/gas-chamber.

[xv] “Firing Squad and Gas Chamber Closer to Reality in Three States.” NBCNews.com. February 12, 2015. https://www.nbcnews.com/storyline/lethal-injection/firing-squad-gas-chamber-closer-reality-three-states-n305266.

[xvi] “States and Capital Punishment.” National Conference of State Legislatures. June 6, 2018.

[xvii] Lanier, Charles S., William J. Bowers, and James R. Acker. The Future of America’s Death Penalty: An Agenda for the next Generation of Capital Punishment Research. Durham, NC: Carolina Academic Press, 2009.

[xviii] “States and Capital Punishment.” National Conference of State Legislatures. June 6, 2018.

[xix] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.

[xx] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.

[xxi] Taylor, Gary. “Protesters fear injection the ‘hi-tech’ death penalty of future.” UPI NewsTrack, December 8, 1982. NewsBank. https://infoweb.newsbank.com/apps/news/document-view?p=AMNEWS&docref=news/15670597B3111AD8.

[xxii] “SWITCH TO USING LETHAL INJECTION WHEN IMPOSING THE DEATH PENALTY.” Sun-Sentinel, April 22, 1992: 14A. NewsBank. https://infoweb.newsbank.com/apps/news/document-view?p=AMNEWS&docref=news/0EB5D2ED847B2357.

[xxiii] “SWITCH TO USING LETHAL INJECTION WHEN IMPOSING THE DEATH PENALTY.” Sun-Sentinel, April 22, 1992: 14A. NewsBank. https://infoweb.newsbank.com/apps/news/document-view?p=AMNEWS&docref=news/0EB5D2ED847B2357.

[xxiv] Paul, S. (2015). TOWARD A UNIFORM STANDARD OF DECENCY: CONNECTICUT’S PROSPECTIVE CAPITAL PUNISHMENT REPEAL AND THE EIGHTH AMENDMENT.Northwestern Journal of Law and Social Policy, 10(1), 280-318. Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/1667167638?accountid=14244

[xxv] Epstein , Lee, and Thomas Walker. 2016. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Washington, DC: CQ Press.

[xxvi] Sheley, E. (2008, Mar). The supreme penalty. The Weekly Standard, 13, 17-19. Retrieved from http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/232994455?accountid=14244

[xxvii] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.

[xxviii] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.

[xxix] Dieter, Richard. “Changing Views on the Death Penalty in the United States.” Death Penalty Information Center. October 7, 2007.

 

By: Blythe Turner, Megan Essig, Elizabeth Kupec

Lethal Injection

The medicalization of capital punishment reflected in the rise of lethal injection should be situated within a broader historical transformation in the cultural landscape of state-authorized violence.  It was only fairly recently – beginning in the middle of the 19th century – when public execution came to be positioned by reformers as a cruel and unnecessarily violent act.   Indeed, public and torturous forms of capital punishment have a long and global history. As far back as the 18th century B.C., King Hammurabi of Babylon codified the death penalty for 25 different crimes.  The death penalty also featured in the Hittite Code from the 14th century, and in the 5th century B.C.’s Roman Law of the Twelve Tablets.[1] Death sentences were carried out by such means as crucifixion, beating to death, burning alive, and impalement.  In the Tenth Century A.D., hanging became the usual method of execution in Britain.

With Britain influencing America’s use of the death penalty more than any other country, capital punishment in the American colonies was typically a highly public spectacle.[2] Intended to serve as a demonstration of the state’s power to punish and thus to discourage others against criminal acts, public executions would attract hundreds and sometimes tens of thousands of eager viewers.  Local merchants would sell souvenirs and alcohol, while fighting and pushing would break out as people jockeyed for the best view of the hanging. At times, spectators would taunt the person to be hanged, or try to tear down the scaffold or rope for keepsakes of the event.  Efforts to abolish public executions emerged toward the middle of the 19th century by reformers who argued that the progress of civilization required the end to such practices.  The last public execution in the United States was held in Kentucky in 1936. Rainey Bethea, an African American man, was hung before a crowd of 20,000 people who had gathered to watch the execution, and which included thousands coming from out of town.[3]  Execution by guillotine and the firing squad causes instant death but is bloody. In attempts to provide more humane, reliable, and scientific methods of killing, hanging was replaced by electrocution, and more recently by lethal injection – the standard in the United States since the 1980s.[4]

 

Thousands of spectators gathered to watch the last public execution in the United States, the hanging of Rainey Bethea, in 1936 in Kentucky.

 

Abolitionist accounts often rely on narratives that tout the termination of public executions as a triumph “for reform, for humanity, and for civilization.”[5]  But scholars suggest that this narrative fails to recognize how medicalization has served to turn execution into what is now seen to be a “routine” medical procedure. Lethal injection, since the early 1980s, has become popular as a form of capital punishment in the United States not only because it is inexpensive but also because it is seen as “humane.”  When compared to electrocution or cyanide asphyxiation, lethal injection has been widely considered by the American public as “more dignified.” Scholars have argued that medicalizing capital punishment in this way works to deflect ethical challenges to lethal injection hiding it behind a “medical veneer.”[6] Thus, by recognizing how the medicalization of death has not so much humanized capital punishment as much as it has altered the terms by which medicine has been recruited to put to death subjects of the state, scholars have problematized triumphalist narratives that claim that lethal injection represents a more “civilized” means of state-authorized death.

This medicalization of death has moved the process of execution from a punitive spectacle to a more scientific procedure. If lethal injection is to be accepted as more “civilized,” “dignified,” and “humane,” then the practice must be carried out with scientifically validated standards. The common protocol for execution by lethal injection was developed in Oklahoma in 1977 by Jay Chapman and involved the sequential intravenous administration of three drugs through a saline drip. The first drug is an anesthetic, sodium thiopental, that renders the prisoner unconscious as it “amplifies the effect of GABA, a neurotransmitter that depresses brain activity, while also blocking the actions of an excitatory brain receptor, AMPA, which acts in many parts of the brain.”[7] The second injection is a paralytic agent (most often pancuronium bromide) that prevents neuromuscular responses to pain by blocking the transmission of acetylcholine. The third drug is potassium chloride that interrupts electrical signals in the heart and deprives the brain of oxygen thereby inducing cardiac arrest. The dosage recommendation for these three drugs is each designed to be lethal.

Though there is little doubt that this sequence of injections would eventually kill the prisoner, this protocol has raised important scientific questions about its efficacy and humaneness.[8] One key problem is that “the method was never subjected to medical and scientific study, much less held to the standards for animal euthanasia.”[9] These drugs have never received FDA approval for this use. How are trials and experiments carried out when the effect and intent of the drug is to kill the inmate? Another key problem involves the effectiveness and availability of the anesthetic drug that makes the prisoner unconscious. Studies in 2005 and 2007 found that the dosages of sodium thiopental might not be high enough to induce unconsciousness and that the inmate might experience chemical asphyxiation.[10] One of the concerns about lethal injection is that the paralytic agent would prevent inmates from any ability to move or express pain should they not be fully unconscious. North Carolina attempted to address these concerns in to require the use a bispectral index to assess the depth of anesthetic sedation during execution before it placed a moratorium on executions.[11]

Another problem became the availability of sodium thiopental which was used until 2009, when it was replaced by pentobarbital, the same drug prescribed for self-administration for aid-in-dying.[12]  Hospira, the supplier of thiopental, and later Lundbeck, the Danish manufacturer of its alternative, pentobarbital, refused to deliver the drugs for “off-label use.” An embargo on the export of execution drugs was backed by the European Union, which is committed to the abolition of the death penalty.[13] This has contributed to a variety of changing state protocols for how to execute by lethal injection.[14]

Attempts to find alternative drugs for use in lethal injection have raised legal, ethical, and quality control issues The dosage of the sedative benzodiazepine midazolam and the opioid hydromorphone used as an alternative in the execution of Dennis Maguire in Missouri caused him to “pant for air, arch his back and clench his fists for ten minutes” before being declared dead at 24 minutes.[15] Fentanyl, a drug that has been a central killer in the epidemic of overdoses in the United States in recent years, has become an alternative in Nebraska and Nevada. It is deadly in high doses and easy available, and combined with Valium and cisatracurium besylate causes “suffocation via paralysis of the diaphragm muscles.”[16] Mississippi and Oklahoma are among the states who have approved the use of nitrogen gas as an alternative way of stopping the prisoner from breathing.[17] Some states used a single-drug barbiturate similar to that used in Medical Aid-in-Dying. The variety of procedures suggests that lethal injection might verge on a form of human experimentation that exploits vulnerable death row prisoners as well as a medical means of causing death.

Whether it is morally acceptable for the state to execute people is an important moral issue for political debate. Global perspectives on corporal punishment enable us to see the widening gap between the US and a growing international consensus to abolish the death penalty.  There are now at least 129 nations that are either de facto or de jure abolitionist and many see the death penalty as a human rights abuse. The vast majority of the world’s executions are carried out by eight nations: China, Iran, Saudi Arabia, Iraq, Pakistan, Egypt, Somalia, and the United States.[18] Nine U.S. states have repealed the death penalty since 2006, recently in 2018 when conservative Nebraska did so over the veto of its governor.  A series of “botched” executions, and fears that the paralytic agent only masked the convulsions and agony of the dying prisoner, has led not only to changing protocols but also to complex situations of litigation that have slowed the number of executions in recent years and to a moratorium on the death penalty in several states. Historian Austin Sarat has documented that seven percent of lethal injection executions have been botched, higher than any other method in American history, and more than twice the average of all methods.[19]

 

Chemical burns on the arms of Angel Diaz during his postmortem autopsy. The execution team had pushed the IV catheters through the veins into the underlying tissue, requiring a second dose of lethal drugs and 34 minutes before he died. Governor Jeb Bush responded by declaring a temporary moratorium on executions in Florida. https://newrepublic.com/article/117898/lethal-injection-photos-angel-diazs-botched-execution-florida [20]

Prisoners and anti-death penalty advocates have argued in many court cases that the unnecessary pain that could be caused by these injection procedures contravene the Constitution’s protection against “cruel and unusual punishment.” The Supreme Court ruled in 2008 that that “the risk of pain from maladministration” and “the failure to adopt untried and untested alternatives” do not make the practices unconstitutional and in 2015 that inmates must identify a “known and available alternative method” that would lower the risk of pain.[21]

A 2018 study discussed abuses of lethal injection in China – which executed more individuals in 2017 (“thousands” but does not release official figures) than the rest of the 22 countries combined who carried out capital punishment.[22] Unethical practices include inefficient doses of anesthesia and hastily declaring death “immediately after cardiac and respiratory arrest” is initiated by the administration of the drug protocol, followed by the immediate procurement of organs for transplantation.[23]

The establishment of lethal injection as the method for capital punishment has raised crucial questions for medical practitioners, beginning with if it should ever be considered a medical procedure. Is assistance with an execution consistent with a doctor’s mandate to alleviate suffering? Or does participation by physicians in an operation designed to kill, as one psychiatrist argues, “lend false credibility and a veneer of humanity to a practice that is anything but credible or humane”?[24]  What Dr. Jonathan Groner calls the “Hippocratic Paradox” highlights the problem: many states legally require medical professionals to supervise lethal injection to ensure a safe procedure, while, at the same time, many medical organizations have ruled that health personnel should play no role in administering the death penalty because it contravenes the oath to “do no harm.”[25] For example, the American Medical Association’s code stipulates that “a physician must not participate in a legally authorized execution” (and that organ donation is permissible only if the decision “was made before the prisoner the prisoner’s conviction.”)[26]  Understanding the reality of how condemned prisoners experience dying during execution is obstructed by secrecy statutes in many states that prevent the public disclosure of members of the execution team or the source of the drugs they used.

A consideration of the ethical, scientific, and cultural dimensions of lethal injection therefore enables us to complicate common and straightforward narratives that the rise of lethal injection represents a humane evolution of the practice of capital punishment.  While the medicalization of state-authorized death in the form of lethal injection would appear to have sanitized and rendered less cruel the practice of committing citizens to death, it has also generated critical questions about the efficacy and role of drugs in enabling “humane” death, and about the implications for physicians and for medical ethics when medicine is used for the purposes of killing.  The fact that the US is increasingly out of step with the global community’s movement toward the abolition of capital punishment suggests that these questions are far from settled.

Jocelyn Chua

Jeannie Loeb

Tim Marr

[1] Laura Randa, ed., Society’s Final Solution: A History and Discussion of the Death Penalty. (Lanham, MD: University Press of America, 1997). https://www.worldcat.org/title/societys-final-solution-a-history-and-discussion-of-the-death-penalty/oclc/36283873

[2] Robert Bohm, Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States (New York: Routledge, 2012). https://www.worldcat.org/title/deathquest-an-introduction-to-the-theory-and-practice-of-capital-punishment-in-the-united-states/oclc/892240146&referer=brief_results

[3] Perry T. Ryan, “The Hangman.” In The Last Public Execution in America (Lexington, VA: Alexandria Printing, 1992). https://www.worldcat.org/title/last-public-execution-in-america/oclc/70121898&referer=brief_results

[4] Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton, NJ: Princeton University Press, 2002). https://www.worldcat.org/title/when-the-state-kills-capital-punishment-and-the-american-condition/oclc/488587366&referer=brief_results

[5] Randall McGowan, “Civilizing Punishment: The End of the Public Execution in England,”  Journal of British Studies 33, no 3 (1994):257-282.https://www.cambridge.org/core/journals/journal-of-british-studies/article/civilizing-punishment-the-end-of-the-public-execution-in-england/01AF9A6D382D71521969982EC1D56B30

[6] Jonathan Groner, “Lethal Injection and the Medicalization of Capital Punishment in the United States,” Health and Human Rights 6, no.1(2002)::64-79. https://cdn2.sph.harvard.edu/wp-content/uploads/sites/125/2013/07/5-Gruner.pdf

[7] Peter Sergo, “How Does Lethal Injection Work?” The Scienceline Newsletter, November 12, 2007. https://scienceline.org/2007/11/ask-sergo-deathpenalty/

[8] Max Kutner, “Meet A. Jay Chapman, ‘Father of the Lethal Injection,” Newsweek, May 1, 2017, https://www.newsweek.com/jay-chapman-inventor-lethal-injection-arkansas-592506; Erd Pilkington, “It’s Problematic: Inventor of US Lethal Injection reveals Death Penalty Doubts,” The Guardian, April 29, 2015. https://www.theguardian.com/world/2015/apr/29/supreme-court-lethal-injection-inventor-death-penalty-doubts

[9] Deborah W. Denno, “The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty,” Fordham Law Review 76, no. 2 (2007): 70.https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4294&context=flr

[10] T.A. Zimmers, J. Sheldon, D.A. Lubarsky, F. López-Muñoz, L. Waterman, R. Weisman, et al. “Lethal Injection for Execution: Chemical Asphyxiation?” PLoS Medicine 4, no. 4 (2007). https://doi.org/10.1371/journal.pmed.0040156; L.G. Koniaris, T. A. Zimmers, D. A. Lubarsky, J.P. Sheldon, “Inadequate Anaesthesia in Lethal Injection for Execution,” Lancet. 365, no. 9468, Apr 16-22, 2005, 1412-4.

[11] Jennifer E. Meyer, “Ameliorating Lethal Injection by Using Bispectral Index Monitoring of Inmates to Help Ensure a More Humane Death,” Hofstra Law Review 45, no. 2 (2016). https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2953&context=hlr

[12] Nathalie Baptiste, “‘This Isn’t Science’: We Have No Idea How Much Pain Inmates Feel During Execution,” Mother Jones, May 15, 2017. https://www.motherjones.com/environment/2017/05/lethal-injection-inquring-minds/

[13] Matt Ford, “Can Europe End the Death Penalty in America? The Atlantic, February 19, 2014. https://www.theatlantic.com/international/archive/2014/02/can-europe-end-the-death-penalty-in-america/283790/

[14] “State by State Lethal Injection,” Death Penalty Information Center, https://deathpenaltyinfo.org/state-lethal-injection

[15] Owen Dyer, “The Slow Death of Lethal Injection,” British Medical Journal 348, April 2014. https://doi-org.libproxy.lib.unc.edu/10.1136/bmj.g2670

[16] William Wan and Mark Berman, “States to Try New Ways of Executing Prisoners. Their Latest Idea? Opioids,” The Washington Post, December 9, 2017. https://www.washingtonpost.com/national/health-science/states-choose-new-ways-to-execute-prisoners-their-latest-idea-opioids/2017/12/09/3eb9bafa-d539-11e7-95bf-df7c19270879_story.html; Josh Bloom, “Fentanyl Front and Center in the Legal Injection Battle,” American Council on Science and Health, January 25, 2018. https://www.acsh.org/news/2018/01/25/fentanyl-front-and-center-lethal-injection-battle-12468

[17] Kevin Morrow, “Execution by Nitrogen Hypoxia: The Search for Scientific Consensus,” 59 Jurimetrics Journal, August 24, 2018, forthcoming in print, 2019. https://ssrn.com/abstract=3237947 or http://dx.doi.org/10.2139/ssrn.3237947

[18] Amnesty International, “The Death Penalty: An International Perspective.”  https://deathpenaltyinfo.org/death-penalty-international-perspective, Accessed January 3, 2018.

[19] Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty (Stanford, CA: Stanford University Press, 2014), 120; Greg Miller, “America’s Long and Gruesome History of Botched Executions,” Wired, May 12, 2014 https://www.wired.com/2014/05/botched-executions-austin-sarat/; For a description of botched executions from lethal injection see the list compiled by Prof. Michael L. Radelet at https://deathpenaltyinfo.org/some-examples-post-furman-botched-executions.

[20] Ben Crair, “Photos from a Botched Legal Injection,” New Republic, May 29, 2014. https://newrepublic.com/article/117898/lethal-injection-photos-angel-diazs-botched-execution-florida

[21] Amanda Chew, “Lethal Injection: Constitutional Method of Execution or Cruel and Unusual Punishment,” International Journal of Punishment and Sentencing 6, no. 1 (2010), https://heinonline.org/HOL/P?h=hein.journals/punisen6&i=23 . Baze v. Rees, 553 U.S. 35, 41, 44-51, 53-57, 62 (2008); Glossip v. Gross, 135 S. Ct. 2726, 2731-42 (2015)

[22] Norbert W. Paul, et. al., “Determination of Death in Execution by Lethal Injection in China,” Cambridge Quarterly of Healthcare Ethics 27, no. 30 (July 2018): 464. https://www.researchgate.net/profile/Arthur_Caplan2/publication/325454352_Determination_of_Death_in_Execution_by_Lethal_Injection_in_China/links/5b1ef6ad0f7e9b0e373dd263/Determination-of-Death-in-Execution-by-Lethal-Injection-in-China.pdf?origin=publication_detail

[23] Samantha Herbert and Keely Lockhart, “Which Countries Executed the Most People Last Year, and Why?” The Telegraph, April 12, 2018, https://www.telegraph.co.uk/news/2018/04/12/countries-executed-people-last-year/

[24] Kerry J. Sulkowicz, “Doctors at an Execution? Medical Ethics Says No,” New York Times, April 25, 2017, https://www.nytimes.com/2017/04/25/opinion/doctors-at-an-execution-medical-ethics-says-no.html

[25] Jonathan I. Groner, “The Hippocratic  Paradox: The Role of the Medical Profession in Capital Punishment in the United States,” Fordham Urban Law Journal 35, no. 4 (2008): 883-917, https://ir.lawnet.fordham.edu/ulj/vol35/iss4/7/

[26] “Capital Punishment, Code of Medical Ethics opinion 9.7.3,” American Medical Association  https://www.ama-assn.org/delivering-care/ethics/capital-punishment. The definition of participation here does not include the certification of the actual death.

 

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