Supreme Court decided
BOSTON -- So we have a national moratorium of sorts. An unofficial stay of execution. All quiet in the death chambers.
In the days since the Supreme Court decided to take on another death penalty case, 11 states -- including Texas, the capital of capital punishment -- have suspended executions. In two more states, inmates slated for death next week may be granted a reprieve. Even the Europeans who led Wednesday's World Day Against the Death Penalty must have missed having their favorite international target.
But there isn't much hoopla among death penalty opponents or much anger among proponents. The case that will be heard this session isn't about the morality or constitutionality of the death penalty itself. It's about the way execution is executed.
The case brought by two death row inmates in Kentucky doesn't ask whether the death penalty constitutes "cruel and unusual punishment," but only whether lethal injection is cruel and unusual. The justices will be asked to rule on the method, not on the madness.
Is there something just a little chilling in this? A searing moral debate reduced to an argument about the details of injections, syringes, dosages, pain and the competence of executioners? How many angels -- or devils -- dance on the head of a needle?
When the Eighth Amendment was written, the Founders looked to Europe for examples of "cruel and unusual punishment," such as drawing and quartering. For more than a century, most executions in America were by noose or firing squad. But by 1890, we were enthralled by technology and queasy about public executions. The electric chair and the gas chamber became the 'advanced' tools of the trade.
Each step toward a more humane standard of state-inflicted death seems to have been followed by horror stories. By the late 1970s, the search for better-dying-through-chemistry led states to adopt the needle as the gold standard.
Forgive me for being graphic, but graphic is the issue. Lethal injection is a cocktail of three drugs. The first is to put the prisoner to sleep. The second is to paralyze him. The third to stop his heart.
That neat, medicinal description doesn't say what happens when the procedure is botched. If the first dose doesn't work, is administered improperly or wears off, the inmate dies in a pain he is paralyzed to express.
There's no doubt that executions have been botched. There was the dyslexic doctor from Missouri who admitted that he didn't always calculate the dosages correctly. There was the Lancet study showing that almost half of the inmates were conscious when they received the heart-stopping drug.
Then there was the inmate in California, who watched the executioners repeatedly poke him with needles and asked, "You guys doing that right?"
Fordham Law School's Deborah Denno grades the quality of executioners found in her surveys this way: "We wouldn't allow them to cook a hamburger.
This is a level of gross incompetence." The American Medical Association has barred its doctors from performing executions.
Once again, what looks antiseptic is not. We have seen another failed attempt to find the execution that fits what the court has defined as our "evolving standard of decency." A case about competence may drive another hole in the notion of a death penalty with decency.
Americans overwhelmingly support capital punishment, though not by the margins of the past. When asked to choose between the death penalty and life without parole, they are evenly divided. Twelve states had already suspended death sentences before this case began and last year there were only 53 executions among some 3,300 inmates on death row.
We have gradually become more wary of convicted criminals found innocent and of racial bias in sentencing. Now lethal injection is also being de-sanitized.
Ironically, we know how to end life painlessly. There are Web sites from here to Holland with information on "death with dignity" and instructions that involve sleeping pills and plastic bags. Surely there are better "cocktails" than the one on trial. But how merciful do we want our capital punishment? How merciless?
The argument about the ways and means of execution reflects our great ambivalence -- the thrust and the recoil -- between the desire for punishment and the revulsion from inflicting cruelty, pain, death. I have long shared that ambivalence.
But as the Supreme Court takes up this issue again, I remember what Justice Harry Blackmun said after a 20-year struggle about just ways to administer the death penalty: "From this day forward, I no longer shall tinker with the machinery of death."
We are still tinkering. This time, we're tinkering with the dosage and the training. Tinkering with competence and mistakes. We are tinkering, tinkering, tinkering to avoid the possibility that we can't have our death penalty and our humanity too.