In December 2010, I wrote an essay entitled “Capital Punishment in an Age of Abolition.” I began with Justice John Paul Stevens, then recently retired from the Supreme Court, who had written about David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition.
I wrote then that capital punishment was “a barbaric remnant of an earlier time,” when public executions satisfied a need for “community gratification and fascination with death.”
Sixteen years later, I find it difficult to understand why we are still doing it.
The recent grotesquely botched attempt by the State of Tennessee to execute Christa Pike illustrates the depravity of a system in which otherwise ordinary public officials can convince themselves that deliberately putting another human being to death is simply the fulfillment of their professional responsibilities.
Pike committed a horrific crime. At 18, she participated in the torture and murder of 19-year-old Colleen Slemmer. Nothing I say here is intended to excuse that crime or diminish the suffering of her victim or her victim’s family.
But consider this peculiarity. Pike’s boyfriend and accomplice, Tadaryl Shipp, was 17 when the murder occurred—less than a year younger than Pike. He too was convicted of first-degree murder, but because of his age he could not be sentenced to death. He received life with the possibility of parole, became eligible for parole in 2025, and, although parole was denied, will receive another hearing in 2031. Pike, meanwhile, was old enough to die.
They were both teenagers. The law drew its line at eighteen.
I made essentially the same point in 2010. I understood then, and understand now, the argument of death-penalty proponents: some people commit crimes so monstrous that it is difficult to argue that they deserve to continue inhabiting the planet. I wrote that I held no brief for Ted Bundy, John Wayne Gacy, Jeffrey Dahmer and their like. I was glad they were gone.
That is not the issue.
The issue is what capital punishment requires us to become in order to kill them.
Pike is now 50. More than three decades have passed since the crime she committed at 18. During virtually her entire adult life she has lived with the knowledge that the State eventually intended to kill her. Whether the woman of 50 is in any meaningful human sense the same person who committed that terrible crime at 18 is worth considering. So is the punishment inherent in spending more than thirty years imprisoned under a sentence of death.
But Tennessee decided that imprisonment was insufficient. She still had to die.
And so the machinery of death was put into operation.
That phrase belongs, of course, to Justice Harry Blackmun. After years of participating in the Supreme Court’s effort to construct a constitutional system of capital punishment, Blackmun finally gave up. In his 1994 dissent in Callins v. Collins, he wrote: “From this day forward, I no longer shall tinker with the machinery of death.”
Tennessee has now given us an almost literal demonstration of that machinery.
Lethal injection was supposed to make execution more humane. The condemned person would appear simply to go to sleep. Gone would be the rope, the electric chair, the gas chamber and the firing squad. Killing would acquire the antiseptic appearance of a medical procedure.
But killing is not medicine.
In the attempt to execute Pike, prison personnel repeatedly struggled to establish intravenous access. The execution failed. Instead of leaving the execution chamber dead, she left it critically ill and on a ventilator. She has since regained consciousness and is speaking, but she remains hospitalized and her prognosis is uncertain. We do not know whether she will fully recover or whether she has suffered permanent neurological injury.
Nor do we know what the State intends to do with her if she does recover. Her lawyers are again seeking clemency. The Governor has halted executions while the State investigates what happened, but he has not commuted her sentence. Thus the extraordinary possibility remains that a woman who survived the State’s attempt to kill her—and whose ultimate injuries from that attempt are not yet known—could someday face the executioner again.
Does any of this make sense?
There is something almost grotesque about calling this humane.
Indeed, the guillotine is more honest and, in a terrible sense, more humane. The condemned person endured the terror of climbing the scaffold, knowing that their head would soon be severed from their body and fall into the basket before them. It was bloody and brutal, but there was no ambiguity about what society was doing: we are killing you. The same was true of the gallows, the electric chair and the firing squad.
There was no pretense that killing had somehow become an act of benevolence.
Lethal injection permits us that pretense. We surround death with intravenous tubing, pharmaceuticals and medical terminology. We make an execution chamber look vaguely like a treatment room. But the purpose is precisely the opposite of medicine. The object is not to preserve a human life but deliberately to extinguish it.
And responsibility for doing so is conveniently fragmented.
The legislature enacted the law. The prosecutor sought the penalty. The jury imposed it. The appellate courts affirmed it. The Supreme Court declined to intervene. The governor declined clemency. The prison officials merely carried out the judgment.
Everyone is simply doing their job.
And at the end of that chain stands a restrained human being whom the State has rendered completely helpless and whom government employees are ordered to kill.
The State, however, is not an abstraction. It is us.
In 2010, I wrote that the central argument against capital punishment was not whether certain criminals deserved to remain alive. It was whether our society could administer death fairly and whether the deliberate killing of prisoners was compatible with what we claimed to be as a civilized society.
The intervening sixteen years have not answered those questions reassuringly.
The danger of executing the innocent remains. The enormous disparities in the administration of capital punishment remain. The interminable appellate process remains, because shortening it increases the possibility of irreversible error. Yet extending it produces the bizarre spectacle of a government imprisoning someone for decades and then announcing, after that person has reached middle or even old age, that the time has finally arrived to kill them.
Death is different from every other punishment for one obvious reason.
It cannot be corrected.
And America increasingly stands apart from the democratic nations with which we ordinarily compare ourselves. Most of Europe and much of the democratic world have abandoned capital punishment. Yet the United States continues to share the practice with countries including China, Iran and Saudi Arabia.
That was troubling when I wrote about it in 2010. It is no less troubling now.
Capital punishment does not become civilized because we substitute an intravenous line for a rope or an electric chair. Nor does a bureaucracy become innocent because responsibility for killing has been divided among so many participants that no individual participant feels responsible for the ultimate act.
Sixteen years ago I concluded that it was time for us “to move beyond this primitive enterprise, and to have some leaders who are politically brave enough to say so.”
I was wrong about one thing.
I thought sixteen years ago that we were closer to doing it.
Justice Blackmun understood where the endless effort to perfect capital punishment ultimately leads. The machinery can be adjusted. The drugs can be changed. The protocols can be rewritten. The executioners can be retrained.
But eventually one confronts the thing the machinery was constructed to do.
It kills a human being who is entirely within our power and no longer capable of harming us.
It is long past time that we stop tinkering with the machinery of death.
It is time to dismantle it.
