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April 27, 2014

"What botched executions tell us about the death penalty"

The title of this post is the headline of this lengthy new Boston Globe op-ed by Austin Sarat.  Here are excerpts:

[I]n keeping its death penalty, New Hampshire did preserve a strange distinction: It is one of three states where hanging still is a legal method of execution.

If it seems surprising, even brutal, that hanging would still be technically legal in 2014, that’s because the evolution of the death penalty in America has been so closely entwined with our belief in technological progress.  As executions have evolved from one method to the next—from hanging to electrocution, from electrocution to lethal gas, from electrocution and gas to lethal injection — supporters have proclaimed the dawning of an era of more humane executions while denouncing previous methods as barbaric and unreliable.  The story of execution in the United States is partly a story of technology making a final punishment less painful and cruel.

But has it?  Using newspaper accounts and a database of all American executions, my collaborators and I recently completed the first comprehensive study of botched executions in the United States and documented the ways that different methods of execution go wrong.  We examined every execution from 1890 to 2010 and found that no technology has been able to ensure that capital punishment would not, on occasion, become either a gruesome spectacle of suffering or a messy display of incompetence.

During the time period covered by our research, 3 percent of all executions were botched, from the decapitations that happened at hangings to the “high tech” electric chair in which condemned criminals have caught on fire.  Botched executions have not disappeared since America has adopted the current state-of-the art method of lethal injection.  In fact, executions by lethal injection are botched at a higher rate than any of the other methods employed since the late 19th century, 7 percent.

This history of botched executions suggests whatever benefits we think we are bringing when we invent and deploy new execution methods may be illusory.  A close look at executions in America suggests that despite our best efforts, pain and potential for error are inseparable from the process through which the state extinguishes life — and that the conversation about capital punishment needs to take that fact into consideration.

April 27, 2014 at 08:18 AM | Permalink

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Comments

I have a hard time seeing a hanging that results in decapitation being a botched execution. Gruesome for witnesses and gristly for whoever has to clean up, yes, but I would think such an outcome would produce an extremely quick death.

I wonder if the traditional hood for a hanging is so that witnesses need not look at the body blinking for a minute even after the spinal column is snapped.

Posted by: Soronel Haetir | Apr 27, 2014 12:04:35 PM

What does "botched" mean if the intended result (decapitation is not the intended result, is it?) not occurring is not it?

Like the technical definition of "perjury" not merely being "lying under oath," the first reply seems to focus on certain necessary criteria. But, I'm unsure if decapitation would meet the relevant ones -- "extremely quick" isn't all that is involved here, is it? A certain TYPE of extremely quick death is.

I take that it is possible that decapitation as compared to the usual death in a hanging can lead, e.g., to more pain. Also, I do think the gruesome nature is an issue. Is not avoiding gruesome deaths a relevant factor? In Baze, e.g., is not appearances a factor in the legitimacy of the paralyzing agent? I think "cruel" has various aspects, and pain -- obviously very important -- is not the only thing we are concerned about here.

And, that isn't even the only thing involved in determining a "non-botched" execution. At least, it would not seem to me to be.

Posted by: Joe | Apr 27, 2014 1:11:16 PM

The more I think about botched executions (and executions in general), the more I'm starting to believe that capital punishment is based significantly on the educative theory of punishment. In other words, the way that we punish has to say something about our society and its moral values. I agree with the other comments that as a society, we want to avoid botched executions that look especially gruesome. We don't want to live in a society where executions are bloody, people are caught on fire, and deaths look more violent than they need to -- even if these types of executions might be less painful than a botched lethal injection, we would rather see a lethal injection because it doesn't seem quite as viscerally unpleasant.

I don't think that this can adequately be explained by any other theories of punishment. If we reserve executions for the worst of the worst, why should it matter for retributive or deterrent purposes whether the execution is painful? Instead, I believe that this concern about finding the appropriate method of execution has much more to do with the way that our society sees itself.

Posted by: Jen D | Apr 27, 2014 1:26:35 PM

Botched executions upset the witnesses, perhaps. However, the prisoner felt no pain if electricity passed at the speed of electricity through the fat that is the brain. That speed made him dead long before he was set on fire. The decapitated prisoner died immediately of his broken neck and damage to the spinal cord before decapitation.

The remedy? End the witnessing of executions. The attention is also a reward that will encourage imitators and more violent crime. For example, the Youtube vid of the Saddam hanging inspired hundreds of young people to hang themselves in the immediate period. The videotaper and Youtube are responsible for these deaths, their being highly predictable, almost to the point of inevitability. Contagion is a solidly established effect of news articles of violent acts.

Posted by: Supremacy Claus | Apr 27, 2014 3:39:42 PM

nice one SC

"For example, the Youtube vid of the Saddam hanging inspired hundreds of young people to hang themselves in the immediate period. "

but me I think this is a good thing. People that are so stupid to do that we are much much better off without.

Posted by: rodsmith | Apr 27, 2014 3:51:12 PM

The reason that hangings were stopped was not because they were being botched but because they had become a public show, a public morality play. A genuine concern arose that juries might be tempted to sentence people to death just for the amusement of it. That might seem a wild notion today but it was a different era. It certainly was not because witnesses were offended--public hangings were popular, too popular.

In any event, there is a 100% foolproof non botch-able humane method of killing: gas. Especially helium. But this country will not do it because Nazis.

"Contagion is a solidly established effect of news articles of violent acts."

Evidence?

Posted by: Dzniel | Apr 27, 2014 4:37:42 PM

Trying to find articles open to the public.

A study of suicide articles:

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1732435/pdf/v057p00238.pdf

http://us.wow.com/wiki/Copycat_suicide?s_chn=71&s_pt=aolsem&v_t=aolsem

Imitation of hanging of Saddam Hussein, anecdotal but plentiful, mostly of kids:

http://www.nytimes.com/2007/01/05/us/05hang.html?_r=2&oref=slogin&

http://abcnews.go.com/Health/story?id=2773792

Book reviewing history and evidence of Werther Effect:

http://www.amazon.com/The-Copycat-Effect-Tomorrows-Headlines/dp/0743482239/ref=sr_1_1?ie=UTF8&qid=1398650368&sr=8-1&keywords=copycat+effect

The effect is highly likely to be real.

Again, I need fairness credit here. This is an abolitionist argument never used. If you execute a criminal, you inspire dozens if not hundreds of other to kill others or themselves. This is the other side of the social learning coin. Both deter and inspire to imitate.

If the effect is real, executions should be secret, excluding even families, and covered up from the media.

Posted by: Supremacy Claus | Apr 27, 2014 10:04:26 PM

Death with dignity. The best method is a firing squad of six and the Governor should be the lead shooter who yells Fire and thence fires his rifle at the human's head. I do not like weasel words like execution. If you are going to kill a human then call it that. "JoeBob was killed at 8 a.m. today by a firing squad of six persons headed by Governor JimBob. Six shots to the head killed him immediately. The public was allowed to watch and the killing took place at Yankee Stadium." What wrong with that?

Posted by: Liberty1st | Apr 27, 2014 10:22:33 PM

Oh dear.

While I appreciate the effort you put into locating those articles Supremacy Claus suicide is exactly the wrong topic to illustrate social learning theory. Suicide is problematic for many reasons. For one, unlike Bandura and his Bobo dolls there is no way possible to do a controlled study on suicide and as you well know correlation is not equal to causation. Second, suicide is well-known to be the most misreported death statistic because of the culture taboo surrounding it. Indeed, the largest problem is that in order for a death to be ruled a suicide the coroner has to be certain the deadly wounds were intentional--the actual forensics is often equivocal and the family often pressures the finder of fact to avoid shame. So a major confounding factor with correlating media reports and suicide is that coroners read the media too and it quite possible that coroners are more likely to categorizes deaths as suicide in the wake of a well-reported killing precisely because they know it's easier for the relatives to swallow--in essence the "Werther Effect's" primary impact is on death categorization and not the actual rate of suicide.

I am a fan of social learning theory--I've used it in articles I've written myself. By I feel it is often oversold and two current examples of this overselling are suicide and violent video games. Sadly, the academic literature often produces much more heat than light and to be truthful I wasn't impressed by the research methodology in any of the ones you linked to.

You also mentioned contagion earlier. The work of Elisabeth Hatfield and emotional contagion is well-done and the whole topic of mirror neurons is fascinating but in general I'm skeptical of the broader notion of "social contagion". My own view is that when it comes to social learning and emotional contagion there is decent (though not overwhelming) evidence that this occurs in intimate environments--the family, a small rock concert--but the more attenuated and diffuse the interpersonal distance between the initiator and the recipient the more problematic the relationship becomes.

Posted by: Daniel | Apr 27, 2014 10:52:36 PM

Instead of executions, could the public support, amputations if the person convicted and the other parties agree to it instead of the death penalty.

Yes, its a provocative question, but its one folks should answer, after all an agreed upon amputation is a less punishment than death and may morally satisfy folks who are against the death penalty, in addition let's assume the defendant goes free but has amputation, is that better than wasting a life without parole conviction?

Folks may prefer that with pain relief than a firing squad or hanging, if its barbaric, isn't the death penalty much more barbaric?


Posted by: alex | Apr 28, 2014 2:40:15 AM

"a 100% foolproof non botch-able humane method of killing: gas"

evidence that human means of doing much of anything significant is "100% foolproof non botch-able"?

I have seen a few argue gas is the solution here & my understanding is that it isn't cyanide gas, the type opposed in cases like this:

http://www.law.cornell.edu/supremecourt/text/503/653#writing-USSC_CR_0503_0653_ZD

There gas is not opposed simply because the Nazis do it though the overall idea of "gas" in all forms might be by association. The proposal here seems to be Asphyxiant gas -- http://www.gistprobono.org/ihhp/id1.html

The brief discussion there alone suggests to me that there can be possible problems. Killing people without problems tends to be problematic -- killing has that sort of thing related to it. But, that is somewhat separate from if this technique should be allowed.

Posted by: Joe | Apr 28, 2014 11:03:02 AM

SC:
You constantly call out lawyers for relying on ancient Judeo-Christian religious doctrines to justify laws.
Seems to me that you are doing the same sort of thing when you advocate "contagion" as prime mover. Such a belief was discredited long ago:
THUS far we have been considering chiefly that branch of sympathetic magic which may be called homoeopathic or imitative. Its leading principle, as we have seen, is that like produces like, or, in other words, that an effect resembles its cause. The other great branch of sympathetic magic, which I have called Contagious Magic, proceeds upon the notion that things which have once been conjoined must remain ever afterwards, even when quite dissevered from each other, in such a sympathetic relation that whatever is done to the one must similarly affect the other. Thus the logical basis of Contagious Magic, like that of Homoeopathic Magic, is a mistaken association of ideas; its physical basis, if we may speak of such a thing, like the physical basis of Homoeopathic Magic, is a material medium of some sort which, like the ether of modern physics, is assumed to unite distant objects and to convey impressions from one to the other.
Sir James George Frazer (1854–1941). The Golden Bough. § 3. Contagious Magic. 1922.

Posted by: ? | Apr 28, 2014 11:52:41 AM

I was trying to give abolitionists a valid argumnt for once.

If you move to Iran, after a short time, you will become more Iranian. We all imitate. Hang someone famous, put it in the media. Kids want to imitate the recording.

If this is true, the prevention of murders will be cancelled by the suicides and murders.

Posted by: Supremacy Claus | Apr 28, 2014 2:13:01 PM

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