Academic journal article Fordham Urban Law Journal

Methods of Execution and Their Effect on the Use of the Death Penalty in the United States

Academic journal article Fordham Urban Law Journal

Methods of Execution and Their Effect on the Use of the Death Penalty in the United States

Article excerpt

INTRODUCTION

The legal controversy surrounding lethal injections as a method of execution has profoundly affected the use of the death penalty in the United States in recent years. Unlike previous attacks on various methods of executions, the latest challenges to lethal injection have already held up more executions, and for a longer time than appeals involving such broad issues as race, innocence, and mental competency. These delays, and the incompetence with which some states carry out lethal injections, may also have a broader effect on the public's acceptance of capital punishment.

This Article examines the direct effect of this debate on executions, on death penalty legislation to date, and on the public's perception of the death penalty in the past few years. Part I of this Article briefly examines how the choice of earlier methods of execution affected the country's perception of the death penalty. Each fundamental change in the method of execution has signaled a change in the underlying purpose of the death penalty and in how people view the state in its role as executioner. Part II concentrates on the pivotal time when the challenges to lethal injections began to limit the number of executions and precipitated changes in the laws that governed the performance of those executions. Previous challenges to the death penalty delayed executions for days, and few, if any, changes to procedure were required. The current challenges, such as Baze v. Rees, (1) however, have resulted in executions being placed on hold for nearly six months. Some states have already reacted to these challenges by changing their procedures, and further changes may follow.

Part III offers an analysis of what has made the current debate different from those in previous eras, and examines the ways in which the practice of the death penalty has already been altered in important and lasting ways. Part IV discusses the impact that the lethal injection controversy has had on the death penalty itself. Finally, the Article concludes by examining whether the lethal injection issue could undermine support for the death penalty itself.

I. THE IMPACT OF EARLIER METHODS OF EXECUTIONS ON THE DEATH PENALTY

For much of the history of the United States, the primary method of execution was hanging. (2) Hanging took place in the center of town using a rope thrown over a tree or scaffold. Americans probably favored this method because of its simplicity as well as its role in sending a strong message to the entire community about the consequences of crime. Hanging required no central facility and allowed for public punishment in front of the community affected by the crime. Even the most rural areas of the country always had access to a rope and a tree. Punishment was for all in the community to see, imparting a moral message along with its death sentence. (3) Citizens thinking of committing a crime might hesitate after seeing a horse thief or runaway slave swinging at the end of a rope.

Hangings became popular spectacles, much like human sacrifices or the games in ancient Rome. Tens of thousands of people attended some hangings, and preachers delivered sermons. (4) Families with children made excursions to see the human drama. (5) But the public nature of hangings was also their drawback. Spectacles do not always produce the desired results, as illustrated by the proliferation of ballads and storytelling about those being hanged and reports of pick-pocketers working during hangings. (6)

Although hangings and the accompanying crowds continued well into the twentieth century, the state of New York took a radical step away from this common form of execution when it carried out the first electrocution in the United States in 1890. (7) New York not only introduced a new method of execution, but also changed public perception of the death penalty. Given the novelty of this technology and the uncertainty over even what form of current would be used to carry out the electrocution, (8) it is doubtful that the choice of this new method was intended solely to provide a more dignified and less painful method of death for the accused. …

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