Killing Capital Punishment

With public support for the death penalty declining dramatically, the barbarous practice may be on its way out.

The electric chair in the Auburn State Prison (1908). Lew Collings / Library of Congress

Officials in Oklahoma and other states are scrambling to figure out a way to kill people.

Concerned over a lack of access to lethal injection drugs, the Oklahoma Legislature passed a bill in late April approving the use of the gas chamber for executions.

This comes on the heels of Utah’s move in March to bring back the firing squad as an alternative to lethal injection, an announcement that spurred another round of debate about executions. While the Denver Post editorial board wrote that the firing squad was “not a solution,” a piece from Bloomberg View titled “Death by firing squad is more humane than lethal injection” circulated widely.

When Utah Gov. Gary Herbert signed the bill authorizing the use of the firing squad, he admitted that he found the method “a little bit gruesome.” Compared to the sanitized image of lethal injection as a painless “medical” procedure, the firing squad appears antiquated and barbaric, a remnant of Wild West justice.

In fact, Utah only got rid of the firing squad in 2004 — and even then the state still offered it as an option to people sentenced before that time. Ronnie Gardner, who was the last person to be put to death in Utah, chose the firing squad for his 2010 execution. While use of the death penalty is rare in Utah — the state has carried out six executions over the last five decades — its notorious history gives it an outsized reputation. In fact, it was in Utah that the country’s first execution was carried out following a four-year moratorium in the 1970s.

A 1972 Supreme Court ruling found the application of the death sentence racially biased, which precipitated a national ban on the punishment. After individual states introduced new death penalty statutes, the Court cleared the way in 1976 for the resumption of capital punishment.

Almost forty years later, the return of the firing squad and the gas chamber comes at a critical time in the national death penalty debate. As lethal injection drugs are becoming increasingly difficult to obtain, support for capital punishment has dropped to its lowest point in four decades — and a growing number of states are banning its use.

The death penalty, it seems, is dying.

The State of the Death Penalty

A recent study from the Pew Research Center found that national support for the death penalty has declined over the last forty years. The decrease has been especially pronounced in the last two decades. As of this month, support for the death penalty is at 56 percent, a dramatic drop from 78 percent approval in 1996. The study also found that a majority of people on both sides of the issue don’t believe that the death penalty deters crime. And an even larger majority believe that innocent people are at risk of being executed.

The drop in support for the death penalty has been reflected in the number of states that have gotten rid of the death sentence, particularly over the last decade. There are now eighteen states without the death penalty, and another eight states that have placed moratoriums on its use.

Since 1976, 1,407 executions have been carried out in the United States, with over 80 percent taking place in the South. Texas alone accounts for over one third of these executions, having killed 524 women and men since the death penalty was reinstated there in 1982.

In 2000, the US carried out ninety-eight executions, the most in a single year since 1976. Since then, the amount of executions has dropped; in 2014, there were thirty-five — the lowest number in two decades.

The decline in popularity and use of the death penalty has been largely been driven by concerns about innocence. As of this month, 152 people have been exonerated from death row nationally. These cases have helped fuel a national discussion about how innocent people end up on death row and in prison.

The defining factors in who receives the death penalty are still race and class. Studies show that black defendants are three times more likely to receive the death penalty than white defendants in similar cases. Almost 80 percent of death row prisoners have been executed for killing a white victim, although about half of all murder victims are black. Over 20 percent of executed black defendants were sentenced by all-white juries.

Meanwhile, roughly 90 percent of people sentenced to death were too poor to afford their own attorney. Studies in several states have shown that anywhere from 20 to 25 percent of people on death row were represented by lawyers who had been disciplined or later disbarred for incompetence. Combine these factors with police and prosecutorial misconduct and an appeals court system that is inclined to rubber-stamp death penalty convictions, and you have a recipe for wrongful convictions.

High-profile movements around innocence cases have helped keep these issues in the spotlight. The execution of Troy Davis in Georgia in 2011 sparked outrage and action on a national scale. Thousands of people believed in Davis’s innocence and took to the streets to protest his execution. There have been other well-documented cases of people who were innocent and executed — people like Cameron Todd Willingham, Ruben Cantu, and Carlos DeLuna, all killed by the state of Texas.

But innocence is not the only reason people are turning away from the death penalty. There is a growing consensus that the death penalty is cruel and unusual in any form, for any person. This feeling has helped fuel the current debate regarding execution methods.

Methods of Murder

Recently, the debate about the death penalty has been centered on lethal injection, the primary method of execution in all states that have the death penalty. The method was created in the ’70s by Oklahoma’s state medical examiner, Jay Chapman, who billed it as a less painful method of execution. Adopted by Oklahoma in 1976, it was first used by Texas in the 1982 execution of Charles Brooks Jr. For a time, many states still used alternative means, including the electric chair in Florida as late as 1999. In fact, many states besides Utah have alternative methods of execution on the books — including the electric chair, the gas chamber, and the firing squad.

However in most states, lethal injection has been the sole manner of execution for decades. In many states this has involved a three-drug protocol including a sedative, a paralytic, and a final drug that stops the heart. The method has persisted despite the fact that it has never been sanctioned by the Food and Drug Administration (FDA).

According to a 2012 study by a team of researchers at Amherst College, lethal injection is the most mistake-prone of any execution method. Their study found that out of nine thousand executions carried out in the United States between 1900 and 2011, 3 percent were botched — but for lethal injection that number jumped to 7 percent.

In an interview in Scientific American in 2010, molecular biologist Theresa Zimmers discussed a report she and her colleagues produced about the use of lethal injection:

There’s no record of a medical or scientific inquiry into whether this would be the best method. And there isn’t any medical evidence to support this approach. Part of the paradox is that it looks like a medical procedure, but it hasn’t been rigorously tested. There are no controlled trials, data collection, analysis or peer review of the processes to determine whether it works the way it’s been said to work.

In 2007, a challenge to the constitutionality of lethal injection protocols was brought before the Supreme Court. In Baze v. Rees, two death row prisoners from Kentucky argued that death by lethal injection amounted to cruel and unusual punishment. The court agreed to hear the case, resulting in an eight-month halt to all executions nationwide.

Although the justices ultimately ruled that lethal injection did not amount to cruel and unusual punishment, the debates, both legal and societal, were far from over. In the mid-2000s a movement began taking shape, especially in Europe, to push drug companies to stop selling their products for use in executions. The campaign has been so effective that a number of states have been forced to change their lethal injection procedure.

In some states, like California, this has required lengthy public input and approval from courts. In others, like Texas, states have simply dropped the three-drug cocktail and administered a series of relatively unknown and untested drugs in a single-drug protocol. Texas and Oklahoma, for example, have turned to local compounding pharmacies, which are unregulated by the FDA.

Oklahoma used drugs obtained from a compounding pharmacy in the gruesome botched execution of Clayton Lockett in 2014. Reports described a chaotic scene in the execution chamber as officials tried to call off the execution at one point, and witnesses saw Lockett writhe in pain on the execution table.

States have also resisted efforts to force prisons to reveal the source of the execution drugs they are using. In Texas, lawmakers have authored a bill to keep secret the names of the compounding pharmacies that are supplying execution drugs — because, they say, the pharmacies refuse to sell the drugs if they cannot remain anonymous. “We’re going to reach the point . . . where we can’t conduct any execution, where we can’t carry out capital punishment in Texas,” State Representative John Smithee said before a House committee last week.

Unknown drugs and botched executions have led to a new round of legal challenges over whether lethal injection violates the constitutional ban on cruel and unusual punishment. These developments beg the question: can any method of execution be considered humane?

Struggling for Abolition

The increasingly desperate attempts by various states to continue carrying out the death penalty may be the last gasps of a dying system.

Over the years, a wide variety of anti–death penalty activists — including family members of prisoners, former prisoners, lawyers, scholars, students, elected officials, and community activists — have built sustained campaigns to stop executions and to expose the many insoluble flaws in the system. The work that these dedicated activists have done has brought the United States the closest it’s been in decades to outright abolition.

There are of course many debates within the abolitionist movement — how much to focus on race, what kinds of alternatives to offer in lieu of the death penalty, which voices must be prominent in the movement. But for a growing number of young activists, there is a recognition that the death penalty is but the sharpest edge of a justice system that oppresses the poor and people of color. The movement to end the death penalty should be considered one facet of the struggle against the system of racialized control that Michelle Alexander calls the New Jim Crow.

Linking the abolition struggle to the growing movement against police violence and mass incarceration is vital. Campaigns to support individuals on death row, amplifying the voices of prisoners and their families, are central to this approach.

This kind of work will continue to chip away at the death penalty system. Even in Texas, or as abolitionists call it, “the belly of the beast,” these efforts are making a difference. Several former prisoners recently traveled there to take part in a campaign to stop the planned March 5 execution of innocent death row prisoner Rodney Reed, and participate in a “Day of Innocence” lobby day at the state capitol. Reed did win a rare stay of execution, and a few weeks later an abolition bill was introduced for the first time in both the Texas House and Senate.

Speaking at a rally for her son a few days before he won the stay, Sandra Reed offered these words: “I will not give up this fight. I will not, regardless of what the outcome will be. There are too many innocent men that have gone, that are waiting, and that will go if we don’t stop this murdering machine.”

The rush to revive macabre execution methods like the gas chamber and the firings squad illustrate the lengths that sections of the ruling elite will go to preserve a powerful tool of repression. As support for and use of the death penalty continues to decline, these attempts appear to be the desperate acts of those on the losing side of the struggle.