The Humane Death Penalty Charade


Charles Warner, left; Richard Glossip, right Credit Oklahoma Department of Corrections
By: NYT Editorial Board
New York Times
Tuesday, January 27, 2015

When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.

The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma death-row inmates alleging that the state’s lethal-injection drug protocol puts them at risk of significant pain and suffering.

In accepting the case, the justices had to change its name. The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-to-4, denied him a last-minute stay. That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution. The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)

Mr. Warner was sentenced to death for raping and murdering an 11-month-old girl named Adrianna Waller in 1997. His execution was originally scheduled for last April, but it was postponed when officials botched the execution directly before his — leaving the inmate, Clayton Lockett, writhing and moaning on the killing table for more than half an hour. The plaintiffs in the current case challenge the continued use of one of the drugs that may have contributed to Mr. Lockett’s prolonged death, the sedative midazolam.

The justices have been here before. They upheld the constitutionality of lethal injection in 2008. But, since then, the battles over the practice have grown more warped. Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training. During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website drugs.com, not scientific studies. It would all be a laughable farce if it didn’t involve killing people.

There is disingenuousness on both sides. Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms. Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments. In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.

It is time to dispense with the pretense of a pain-free death. The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable. When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

Last summer, Alex Kozinski, a federal appellate judge in California and a supporter of the death penalty, called out this charade for what it is.

Lethal injections, he wrote, are “a misguided effort to mask the brutality of executions by making them look serene and peaceful.” But executions “are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”