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."