Methods of execution and their effect on the use of the death penalty in the United States.

AuthorDieter, Richard C.
PositionThe Lethal Injection Debate: Law and Science

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.

  1. 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. More likely, this innovation served state interests of minimizing the unruliness and sometimes sympathetic nature of hangings. (9) Electrocution brought executions under one roof with relatively few witnesses.

    This new method of execution also changed the image of the death penalty in the mind of the public. (10) The electric chair required sophisticated machinery, specialized knowledge, and careful preparation. New York executions were no longer public. Officials conducted electrocutions inside the penitentiary with witnesses chosen by the prison. (11) Common criminals were no longer hanged in the town commons, but in a location outside the community.

    The different style of execution reflected a shifting purpose behind the death penalty, from one where the state was sending a warning to the community to one where the state enacted retribution on the offender. Stuart Banner, in his recounting of the history of the American death penalty, noted that hangings failed to convey the message intended: "[T]he execution ceremony, by focusing attention on the qualities of the person being hanged, produced as much pity as condemnation." (12) In electrocutions, the criminal's life was now extinguished with the most advanced and lethal technology available. "Technology would make the death penalty more humane by making it less human." (13) The state's power was dominating and the defendant's demise was ignominious. Instead of a festive crowd and the possibility of being remembered in song, the execution was now carried out under the warden's careful eye, out of sight of even the other prisoners.

    In wielding such power, the government could nevertheless claim that it was being humane, as electrocution promised to be a swifter method of execution than hanging. Of course, this new method had the added advantage that if anything went wrong (as it frequently did), (14) it was not on display for everyone to see.

    Almost ninety years later, the shift to lethal injections signaled not only another bow to technology, but also a change in public perception of the death penalty. This shift came after a period of uncertainty for the continuation of the death penalty in general. For the first time in United States history, the Supreme Court halted executions for an extended period in 1972. (15) Anticipation of a Supreme Court ruling on the constitutionality of the death penalty, followed by the Court's striking down of all existing statutes and death sentences in 1972, resulted in a nearly ten-year moratorium on executions. (16) Electric chairs and gas chambers sat unused and began to appear antiquated and risky. To begin using them once again would require refurbishing equipment that had no other use in society. Some states chose this moment to introduce a technological innovation that would reinforce the state's power while attempting to balance it with compassion and dignity. (17)

  2. THE IMPACT OF CHALLENGES TO EARLIER METHODS OF EXECUTION

    Methods of execution had been challenged before the introduction of lethal injection, but the challenges rarely resulted in delays of more than a few days, and no method of execution was found unconstitutional. (18) There are a number of reasons for the ineffectiveness of these earlier challenges. First, it was not until 1962 that the Eighth Amendment's cruel and unusual punishments clause was found to apply to the states. (19) Prior to that time, only two punishments in the history of the country had been held to be in violation of the Eighth Amendment. (20)

    The Court did review certain aspects of execution, but the challenges were usually heard quickly and without significant delay to the individual execution, much less to the whole death penalty system. The story of William Kemmler and the first electrocution illustrates how quickly the Court could move, even when a completely new method of execution was introduced. After the New York courts denied relief, Kemmler's attorney filed a petition to the U.S. Supreme Court on May 5, 1890 challenging the new method of electrocution. (21) The court heard arguments on May 20 and denied Kemmler relief on May 23. He was executed on August 6, just three months after his appeal was filed. (22)

    The Court took longer to decide whether subjecting a person to electrocution twice constituted a cruel and unusual punishment, but still did not prevent such executions. Willie Francis was first placed in the electric chair in Louisiana on May 3, 1946, but the electricity applied failed to kill him. (23) He was returned to his cell and his appeals eventually reached the U.S. Supreme Court. (24) On January 13, 1947, the Court held that any added pain that Francis would suffer as a result of being subjected to a second electrocution was an unforeseeable consequence of the first attempt and, thus, did not rise to the level of cruel and unusual punishment. (25) He died in the electric chair four months later on May 9, 1947. (26)

    In 1878, the Supreme Court also allowed the execution by firing squad of Wallace Wilkerson in the Utah territories. (27) Although the Court upheld the method of execution, Wilkerson was not executed until over a year later in May 1879. There was at least some public dissent about the process, as evidenced by one of the daily newspapers:

    The execution of Wallace Wilkerson at Provo yesterday affords another illustration of the brutal exhibitions of inquisitorial torture that have of late disgraced ... the country and which have in some States so shocked the natural sensibilities of the people that extreme punishment has been abrogated from pure disgust excited by the sickening spectacles of rotten ropes, ignorantly or carelessly adjusted nooses or inexperienced marksmen. These disgusting scenes are invariably ascribed to accidental causes, but they have...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT