Death Penalty Walking

On Jan. 7, the supreme court will hear oral arguments in a pair of Kentucky lawsuits challenging the lethal three-drug cocktail used in most U.S. executions. The gist of the cases is that the drug combination is unnecessarily complicated, using three chemicals when one would do, and that when this procedure is administered by undertrained prison officials, there's an unconstitutional risk that something will go wrong. Instead of going to a quiet death, an inmate could experience terrifying paralysis followed by excruciating pain.

In a perfect world, perhaps, the government wouldn't wait 30 years and several hundred executions to determine whether an execution method makes sense. But the world of capital punishment has never been that sort of place. This weighty moral issue, expressive of some of our society's deeply held values, involves a lot of winging it. In 1990, for instance, a sponge used in the headpiece of Florida's electric chair wore out. There's no factory or parts catalog for execution devices, so the prison sent a guy to pick up a sponge at the store. Problem was, he bought a synthetic sponge instead of a genuine sea sponge, and when Jesse Tafero was strapped in, his head caught fire. Florida officials diagnosed the problem afterward by testing a similar sponge in a toaster.

In comparison, lethal injection sounds more scientific--almost therapeutic--but its history is as improvised as that supermarket sponge. In 1977 an Oklahoma lawmaker sketched the protocol on a notepad with the help of a medical examiner. More research has gone into the proper way to brush your teeth. But the idea caught on, and now, years later, more than half the states have adopted some version of the Oklahoma cocktail. Judges in courts across the country are scratching their head over the odd concoction, and the Supreme Court has effectively halted all executions to untangle a mess of belated questions: How much risk of torture is too much? How many safeguards are necessary? What makes a punishment cruel and unusual?

Decades of well-intentioned brainstorms like this one--legal, medical, procedural, political--have accumulated into one thoroughly screwed-up system. Any other government program that delivered 3% of what it promised--while costing millions of dollars more than the alternative--would be a scandal, but the death penalty is different. In its ambiguity, complexity and excess, the system expresses a lot about who we are as a nation. We're of mixed minds, and most of us would rather not spend a lot of time thinking about killing. A majority of Americans support the idea of capital punishment--although fewer are for it if given a choice of life without parole. At the same time, a substantial number in a recent poll said they could not serve on a death-penalty jury.

Our death penalty's continued existence, countering the trend of the rest of the developed world, expresses our revulsion to violent crime and our belief in personal accountability. The endless and expensive appeals reflect our scrupulous belief in consistency and individual justice. This is also a nation of widely dispersed power--many states, cities and jurisdictions. Out of this diversity has emerged the staggering intricacy of death-penalty law, as thousands of judges and legislators from coast to coast struggle to breathe real-life meaning into such abstract issues as what constitutes effective counsel, what is the proper balance of authority between judge and jury, what makes a murder "especially heinous," what qualities and defects in a prisoner compel mercy, and so on.

Such parsing has gone on for nearly 50 years, since the gestation of the model penal code after World War II. But it isn't getting us anywhere. Even supporters of capital punishment can't admire a process in which fewer than 3 in 100 death sentences imposed in the U.S. are carried out in any given year. California's death row houses more than 660 prisoners, but no one has been executed in the state in nearly two years. Pennsylvania, with 226 inmates on death row, hasn't carried out a sentence since the '90s. In Florida a spree killer named William Elledge, who confessed to his crimes and has openly discussed his guilt in interviews, will soon complete his 33rd year on death row with his appeals still unresolved. Thirty-three years! He's one of about 55 men in Florida alone with more than 25 years on death row.

The more effort we invest in trying to make this work, the harder it seems to be to give up. The death penalty in the U.S. is a wreck, but it's our wreck--a collage of American attitudes, virtues and values.

The Rube Goldberg Death Machine

Less democratic nations have abolished the death penalty without regard for popular opinion. Less violent nations have forgotten the reasons for it. Less humane nations have no qualms about unfair executions. The kernel of the issue, it seems, is the signature American angst over how to balance individual rights with public order.

The debate almost always comes down to the question of whether to fix it or end it. But these alternatives largely miss the reality. Every attempt to fix the death penalty bogs down in the same ambivalence. We add safeguards one day, then shortcut them the next. One government budget contains millions of dollars for prosecutions, while another department spends more millions to defend against them. Indeed, the very essence of ambiguity is our vain search for a bloodless, odorless, motionless, painless, foolproof mode of killing healthy people. No amount of patching changes the nature of a Rube Goldberg machine. In 1996 Congress passed an extensive overhaul of capital punishment, but as in all previous overhauls, the changes quickly spawned new nuances to appeal. Ten years later, one of the most skillful anti-death-penalty lawyers in the country, Mark Olive, summed up the impact of the grandly titled Anti-terrorism and Effective Death Penalty Act, saying "It gave us 10 years of fresh issues to litigate."

Supreme Court Justice Harry Blackmun aptly described this endless activity as "tinker[ing] with the machinery of death." He spoke as a veteran tinkerer, having helped cook up an abstruse set of requirements for calculating the aggravating and mitigating factors in a prisoner's life and crimes--a concept that continues to bog down juries and judges a generation later. Other veterans of the Supreme Court's long struggle with capital punishment have also soured on the experiment. Justice Lewis Powell told a biographer that the vote he most regretted was the one he cast in 1987 to save capital punishment. Another member of the five-Justice majority in that case, Sandra Day O'Connor, told a group of Minnesotans not long ago that they should "breathe a big sigh of relief every day" that their state doesn't have the death penalty. Justice John Paul Stevens, who as a new Justice in 1976 voted to restore capital punishment, now speaks of the "serious flaws" in the system he helped devise.

However, attempts to end capital punishment must overcome inertia and the weight of public sentiment. This isn't easy. In the U.S., support for the death penalty has fallen from a high of about 80% at the peak of the murder epidemic of the 1980s and '90s to somewhere between half and two-thirds, depending on the poll. But politicians know that a 69% approval rating is nothing to sneeze at. Only one state has abolished capital punishment since the Supreme Court reinstated it in 1976: New Jersey, last month. Legislatures in New Mexico, Montana, Nebraska and Maryland appear to be within one or a few key votes of following suit. New York's high court struck down that state's death penalty without stirring up much protest. But while that means 14 states now have no death-penalty law in effect, the majority of states are a long, long way from giving up.

An Inconsistent, Ungainly Collapse

Instead, the death penalty is being hollowed out. Nearly all the states have adopted the alternative of life-without-parole sentences, and prosecutors and juries are embracing the option. Life without parole doesn't trigger the separate sentencing trials and automatic appeals that can make death sentences so financially and emotionally costly. As a result, prosecutors are seeking and juries are delivering far fewer death sentences: last year's total of 110 was the lowest since the introduction of the modern death-penalty system. Nationwide, the number of death sentences has fallen almost two-thirds, and the trend extends even to Texas, the heart of the death-penalty machine. There, 14 prisoners were sentenced to death in 2006, compared with 40 a decade earlier.

The number of executions has also dropped dramatically from its modern peak in 1999. The 42 executions in 2007 were the fewest in 13 years. A number of states had called formal or informal moratoriums even before the Supreme Court effectively halted executions nationwide pending its review of lethal injection.

We now have a situation in which a majority of the states that authorize the death penalty seldom if ever use it. Last year only 10 states carried out an execution. And even that number overstates the vigor of the system. If you don't count executions of inmates who voluntarily dropped their appeals and asked to be killed--essentially government-assisted suicides--the state count falls to eight.

Our Rube Goldberg contraption is being dismantled the same way it was built--not straightforwardly but in uncoordinated and even inconsistent steps. The ungainly, ambivalent collapse of the death penalty seems unfitting for a punishment whose very existence is largely symbolic. But the trend is unmistakable.

The Supreme Court is part of this slow-motion shutdown of the death-penalty machine. In recent years the court has banned executions of mentally retarded inmates and of prisoners who committed their crimes as minors. The mere fact that the court is hearing the lethal-injection cases is historic because the institution has always been reluctant to inquire into the business end of the death penalty.

The last time the court descended into the gruesome details was in 1947, when it ruled on the case of an unfortunate Louisiana inmate, Willie Francis. Sentenced to death in 1945 for murder, he was strapped into the electric chair several months later and zapped--but something went wrong, and he survived. Francis recovered enough to realize that the state intended to repair the chair and put him back in it. He begged the court for a reprieve. The squeamishness of the Justices was apparent in the opinion, but ultimately five of them agreed that the equipment malfunction was an honest mistake and thus Louisiana was entitled to try again. That time, Francis was killed.

There's nothing attractive about the specifics of the death chamber. In the arguments on Jan. 7, the Justices may hear descriptions of bloody surgeries, called cutdowns, performed by EMTs and less trained prison officials as they struggle to insert IV lines into the ruined veins of longtime drug abusers. Without a doctor present, it often falls to prison officials--sometimes watching from a separate room--to determine whether an inmate is unconscious or simply paralyzed as the searingly painful heart-stopping agent potassium chloride takes effect.

It's possible the court will ponder this haphazard procedure and say again, as it ruled in the Francis case: Too bad--accidents will happen. Or it might follow the lead of U.S. District Judge Jeremy Fogel, who ruled that the three-drug cocktail, administered by people without proper training and supervision, is cruel and unusual. Or something in between.

The discussion itself is another sign of the nation's ambivalence about the ultimate, irreversible punishment. And as long as we're ambivalent, we'll continue to have the system we have made for ourselves--inefficient, beyond repair and increasingly empty. A Crumbling System Fewer than three of every hundred death sentences are ever carried out. Among the 36 states that have the death penalty, only 10 performed an execution last year. [This article contains a complex diagram. Please see hardcopy of magazine.]