The “death chamber” in Huntsville, Tex. (Paul Buck/AFP/Getty Images)
In announcing its decision in Glossip v. Gross the U.S. Supreme Court joined lower court judges, attorneys for and against the death penalty, and lawmakers in the realm of making medical decisions. In Baze v. Rees the justices determined that lethal injection, if properly applied, does not pose the risk of unconstitutional suffering. Monday, the Court allowed the use of a particular drug, the sedative midazolam, whose use had been challenged by Oklahoma inmates on the grounds that it did in fact result in unconstitutional suffering. In the Court’s ruling Monday, the majority argued that inmates had shown no better alternative method, and that they had not shown that the proposed method “entails a substantial risk of severe pain.”
But here is what gets lost in the debate about acceptable methods of legal execution: our country never sticks with any particular method for long. We have executed over 1,400 inmates since the 1976 reinstatement of capital punishment, and over 85 percent have died by lethal injection, justified as the most humane method of death. Just 158 have been killed by the electric chair, 11 by the gas chamber (most recently in 1999), just three killed by the firing squad, and three by hanging (most recently in 1996).
At the beginning of the “modern” era of capital punishment, as executions ramped up after the 1967-77 constitutional hiatus, after the death by firing squad of Gary Gilmore, Jay Chapman, the Oklahoma state medical examiner at the time, developed the idea of using lethal injection. It was designed as more humane means of killing as compared to the electric chair or the firing squad. As electrocutions continued to pose problems, notably, the horrifically botched 1990 execution of Jesse Tafero in Florida, states moved almost unanimously to adopt Chapman’s new lethal injection system.
Lethal injection thus fits a long-standing historical pattern — whereby means of execution come to be seen as problematic or inhumane, and we search for a more humane method. Each new method is touted as morally superior to the old. This graph shows how we have executed inmates in the United States since 1900, and in particular the cyclical pattern of replacing the old with the new:
From historical times, hanging was the most common method by far, and it remained the predominant method as we entered the 20th century. In fact, from 1608 through 1899, 96 percent of all U.S. executions were by hanging. Hanging was replaced after the rise of the new technology of electricity. Thomas Edison promoted the use of alternating current as the appropriate method, hoping to associate death, smoke, and the gallows with the technology of his rival, George Westinghouse. (Edison’s system was direct current, and neither was yet dominant in the market.) When New York used the technology for the first time in 1890, the promoter of the method said that “we live in a higher civilization today.” Edison said that the inmate had been “Westinghoused.” Westinghouse donated $100,000 to the defense. After the initial bolt of contact with the electric current failed to kill the inmate, officials doubled the voltage, and he was killed. The attending physician predicted that no state would ever use the technology again, so horrific was the process.
Electricity surpassed hanging as the preferred method of killing by the 1920s and was the most common form during the period when the United States executed the most inmates in its history: the 1930s. But even while hanging continued its decline, another new technology appeared: the gas chamber. In North Carolina, the same small room where lethal injections are now carried out has an iron door reminding us of its history as a gas chamber, and marks on the floor where the electric chair had been before then, bolted at the same spot as the gurney now sits.
When executions resumed after their hiatus between 1967 and 1977, Gary Gilmore chose Utah’s firing squad as the method, but few followed that example. Some states continued on with the electric chair, but most moved to lethal injection. The gas chamber had proved hard to manage, did not generate the hoped-for painless death, and went wrong several times. So again we moved to something new, and this technology promised exactly what the previous technologies had: a break from the past, a new, more humane, more technologically advanced, and painless method of killing. Further, with the paralytic drugs stopping the inmate from as much as grimacing, it promised a less troubling experience for any witnesses. And, just as in each previous case, initial hope that these qualities might actually be possible has been dashed by the weight of experience.
Botched executions by lethal injection were at the core of the debates before the Supreme Court in Glossip: how can we kill an inmate without inflicting unnecessary pain? In our search for a method of legal killing that appears at the same time to be devoid of torture and civilized as well, we have continually come up short. If history is any guide, we will tire of lethal injection just as we have tired of hanging, electrocuting, shooting, and burning.
Baumgartner holds the Richard J. Richardson Distinguished Professorship in Political Science at UNC-Chapel Hill and is the co-author of The Decline of the Death Penalty and the Discovery of Innocence.
See also his earlier post, “Most death penalty sentences are overturned. Here’s why that matters.”
