The "death bed" in the death chamber is separated by bars from the witness viewing room at the Walls Unit of the Texas Department of Corrections in Huntsville, Texas
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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.]