Cruel and Unusual

by Jeffrey Toobin December 23, 2013

Pity the modern executioner. The Supreme Court has burdened him with obligations
that reflect considerable ambivalence about his profession. (States generally do not
release the names of executioners, but they appear to be almost all men.) The
underlying task has remained unchanged throughout history, but over the years the
Court has mandated that executions be conducted with some finesse. In 1890, the
Justices said that the process could not include torture or a lingering death.
Accordingly, in 2008, the Court rejected a challenge to execution by lethal injection
the prevailing method in the thirty-five states with prisoners on death rowbecause,
as Chief Justice John Roberts noted in his opinion, the procedure did not present a
substantial risk of serious harm. In other words, death is required, but harm is
forbidden. Clear?
The story of the death penalty in this country illustrates a characteristically American
faith in a technological solution to any problem. For the first century after
independence, hanging (imported from Britain) was the method of choice, though
firing squads were occasionally employed. Then, shortly before the turn of the last
century, electric power transformed life in citiesand the death penalty, too. Yet, then
as now, feelings about it were mixed. Thomas Edison, fearing negative associations for
his direct-current technology, advocated using his rival George Westinghouses
alternating current for what became known as the electric chair. Worried about the
same thing, Westinghouse financed the appeal of the first defendant sentenced to die in
an A.C.-powered chair, but he was unsuccessful. In 1890, in Auburn, New York,
William Kemmler, convicted of murdering his common-law wife, became the first
American to be executed by electrocution. According to a grimly fascinating database
of executions in the United States from 1608 to 2002, compiled by M. Watt Espy and
John Ortiz Smykla, some four thousand people followed Kemmler to the chair. The
gas chamber came into use in 1924, in Nevada, and, despite the Courts 1890 ruling,
both methods, though refined over time, malfunctioned periodically. In the nineteeneighties, they were marred by an association with Fred Leuchter, Jr., a self-taught
engineer who supplied execution equipment to many prisons, and turned out to be a
Holocaust denier.
The Chief Justice, in his 2008 opinion, wrote that the firing squad, hanging, the
electric chair, and the gas chamber have each in turn given way to more humane
methods, culminating in todays consensus on lethal injection. That suggests a more
logical process than actually took place. In 1977, state legislators in Oklahoma asked
Jay Chapman, the state medical examiner, to come up with a more contemporary
method of execution. As he later told Deborah Denno, a professor at Fordham law
school, he was an expert in dead bodies but not an expert in getting them that way.
Still, he devised what became known as the three-drug protocol. A prisoner is

injected first with sodium thiopental, a barbiturate anesthetic; then with pancuronium
bromide, a muscle relaxant; and, finally, with potassium chloride, which causes cardiac
arrest. Chapmans protocol was first used in Texas, in 1982, and it quickly became the
national standard.
But, in recent years, complications have arisen. In 2009, Hospira, Inc., the sole
American manufacturer of sodium thiopental, stopped production of the drug at its
plant in North Carolina. The company intended to shift production to Italy, but the
government of that nation, which prohibits capital punishment, demanded a guarantee
that none of the drug sold would be used for executions. Hospira felt unable to enforce
the agreementand claimed not to condone such use, anyway.
What followed was a black comedy of increasingly desperate attempts by prison
officials to procure sodium thiopental. Under pressure from European authorities,
legitimate pharmaceutical companies began refusing to provide it. For a time, officials
obtained the drug from a middleman in London, who shared office space with a
driving school. Then, in 2012, a federal court told the Food and Drug Administration
to block its importation, because the source had not been properly certified. Some
states had already moved to replace it with the barbiturate pentobarbital, but Denmark,
the sole producer of that drug, had refused to allow its sale for executions. Missouri
then adopted a one-drug protocol, seeking to inject an overdose of propofol, a wellknown drug used in medical anesthesia. (Michael Jackson died of a propofol
overdose.) Here, too, a manufacturer objected, issuing a statement that the use of
propofol in executionsregardless of its sourcecould lead to sanctions by the
European Union that would threaten the U.S. supply of this indispensable drug. Now
seven states, including Missouri, have turned to the shadowy world of compounding
pharmacies, which can obtain and create drugs without F.D.A. supervision. The risks
of these substances being contaminated, or insufficiently effective, are considerable.
This macabre commerce takes place against broader changes in Americans views of
capital punishment. Gallup has conducted a poll on the death penalty since 1936. In
1994, eighty per cent supported it, the highest number on record; in 2013, sixty per
cent did, the lowest number since 1972. This year will be the fourth straight year in
which there have been fewer than fifty executions, down from a peak of ninety-eight,
in 1999. The national death-row population has remained essentially stable, at about
three thousand, for nearly a decade. Prosecutors and defense lawyers agree that jurors,
chastened by DNA exonerations in recent years, are less likely to impose death
sentences. Three hundred and fifteen were handed down in 1994; seventy-eight were
in 2012. During the same period, the murder rate also plunged, rendering especially
hollow the traditional argument that the death penalty serves as a deterrent. It now
exists in a kind of twilight, a fading but still significant presence in American life. To
paraphrase the Eighth Amendment, executions have always been cruel; now they are
unusual, too.
The oxymoronic quest for humane executions only accentuates the absurdity of
allowing the death penalty in a civilized society. Its understandable that Supreme
Court Justices have tried to make the process a little more palatable; and there is a
meagre kind of progress in moving from the chair to the gurney. But the essential fact

about both is that they come with leather straps to restrain a human being so that the
state can kill him. No technology can render that process any less grotesque