Magazine article The New Yorker

Cruel and Unusual

Magazine article The New Yorker

Cruel and Unusual

Article excerpt


--Jeffrey Toobin

Pity the modern executioner. The Supreme Court has burdened him with obligations that reflect considerable ambivalence about his profession. (States generally do not release the names of executioners, but they appear to be almost all men.) The underlying task has remained unchanged throughout history, but over the years the Court has mandated that executions be conducted with some finesse. In 1890, the Justices said that the process could not include "torture or a lingering death." Accordingly, in 2008, the Court rejected a challenge to execution by lethal injection--the prevailing method in the thirty-five states with prisoners on death row--because, as Chief Justice John Roberts noted in his opinion, the procedure did not present a "substantial risk of serious harm." In other words, death is required, but harm is forbidden. Clear?

The story of the death penalty in this country illustrates a characteristically American faith in a technological solution to any problem. For the first century after independence, hanging (imported from Britain) was the method of choice, though firing squads were occasionally employed. Then, shortly before the turn of the last century, electric power transformed life in cities--and the death penalty, too. Yet, then as now, feelings about it were mixed. Thomas Edison, fearing negative associations for his direct-current technology, advocated using his rival George Westinghouse's alternating current for what became known as the electric chair. Worried about the same thing, Westinghouse financed the appeal of the first defendant sentenced to die in an A.C.-powered chair, but he was unsuccessful. In 1890, in Auburn, New York, William Kemmler, convicted of murdering his common-law wife, became the first American to be executed by electrocution. According to a grimly fascinating database of executions in the United States from 1608 to 2002, compiled by M. Watt Espy and John Ortiz Smykla, some four thousand people followed Kemmler to the chair. The gas chamber came into use in 1924, in Nevada, and, despite the Court's 1890 ruling, both methods, though refined over time, malfunctioned periodically. In the nineteen-eighties, they were marred by an association with Fred Leuchter, Jr., a self-taught engineer who supplied execution equipment to many prisons, and turned out to be a Holocaust denier.

The Chief Justice, in his 2008 opinion, wrote that "the firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today's consensus on lethal injection." That suggests a more logical process than actually took place. In 1977, state legislators in Oklahoma asked Jay Chapman, the state medical examiner, to come up with a more contemporary method of execution. As he later told Deborah Denno, a professor at Fordham law school, he "was an expert in dead bodies but not an expert in getting them that way." Still, he devised what became known as the "three-drug protocol." A prisoner is injected first with sodium thiopental, a barbiturate anesthetic; then with pancuronium bromide, a muscle relaxant; and, finally, with potassium chloride, which causes cardiac arrest. Chapman's protocol was first used in Texas, in 1982, and it quickly became the national standard.

But, in recent years, complications have arisen. …

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