Hilland

HILLAND .
DOC 5/26/09 6:00 PM
JUSTICE STEVENS AND THE TECHNOLOGIES

OF DEATH: WHY SOME METHODS OF
EXECUTION ARE WORSE THAN OTHERS, BUT
NONE ARE BETTER
ANDREW HILLAND*
This article examines the correlation between execution methods and the general
legitimacy of the death penalty, in light of the Supreme Court's ruling in Baze v Rees. It
is argued that two historical shifts- the move of executions from the public to the
private realm and technological refinements in the machinery of death- are at odds
with the primary stated rationales of capital punishment in America, in particular those
of retribution and deterrence. The article concludes that this tension reveals a
fundamental societal ambivalence about the death penalty in America which may
ultimately lead us to accept what Bedau has described as 'Schwarzschild's Paradox':
the notion that some methods of execution are worse than others, but that none are
better.
I. INTRODUCTION ............................................................................................. 2
II. ADVANCEMENT IN THE METHOD OF STATE KILLING............................... 3
A. The Hidden Reality: from public to private executions ................. 5
B. Perfecting the Technology of Death ................................................ 6
1. Hanging ...................................................................................... 6
2. Electrocution ............................................................................. 7
3. Gas Chamber ............................................................................. 8
4. Lethal Injection ......................................................................... 9
III. EXPLAINING THE SHIFTS – HUMANE MOTIVES? .................................... 11
A. From Public to Private Executions ............................................... 11
B. Perfecting the Technology of Death ............................................. 13
IV. HISTORICAL SHIFTS AND THE RATIONALES FOR CAPITAL
PUNISHMENT ........................................................................................ 16
A. Incapacitation................................................................................. 17
B. Retribution...................................................................................... 18
C. Deterrence ...................................................................................... 22
V. EXECUTION METHODS AND THE SOCIETAL AMBIVALENCE .................. 24
VI. CONCLUSION: TOWARDS SCHWARZCHILD’S PARADOX ........................ 26
* Andrew Hilland received a first class B.A in Jurisprudence from Magdalen College,
Oxford University and an L.L.M from New York University. He is currently a trainee lawyer.
with Freshfields Bruckhaus Deringer LLP in London. The author would like to thank Professor
David Garland for his comments on earlier drafts of this paper.
1
HILLAND .DOC 5/26/09 6:00 PM
2 THE DARTMOUTH LAW JOURNAL Vol. VII:1
I. INTRODUCTION
In Baze v Rees, concurring in the rejection of the petitioners claim that

Kentucky’s three drug lethal injection procedure violated the 8th
Amendment, Justice Alito stated: “the issue presented in this case – the
constitutionality of a method of execution – should be kept separate from
the controversial issue of the death penalty itself. If the Court wishes to
reexamine the latter issue, it should do so directly.”1 The concern was that
the court should not produce a de facto ban on capital punishment by
adopting restrictive rules governing the method of execution that might
lead to a litigation gridlock. For Justice Alito, doing so would undermine
the institution of capital punishment through what was perceived to be a
‘back door’ challenge. And he was not alone in this thinking. The majority
of the justices in Baze took as their starting point the view that capital
punishment is per se constitutional, before deducing that there must
therefore be some constitutional means of carrying it out.2 Such reasoning
may in part explain why the Supreme Court has never struck down a
method of execution as illegal.3 The rigid analytical separation between the
question of the legitimacy of the death penalty generally and the legitimacy
of the method utilized to carry it out is a deep-rooted one. Abolitionists
seem to ascribe to this methodology as readily as supporters, as evidenced
by Amnesty International’s recent report which states: “Amnesty
International opposes the death penalty without reservation as a violation
of the right to life and the right not to be exposed to torture or to cruel,
inhuman or degrading treatment. The method of execution has no bearing
on this position as, in Amnesty International’s view, the problem lies not
with the method of execution but with the punishment itself.”4
In his opinion written for Baze, Justice Stevens makes a significant
departure from this paradigm, arguing that the death penalty is no longer
constitutional due to the irreconcilability of the societal purposes of the
death penalty sanction accepted in Gregg with the death penalty’s current
form.5 What is novel in Stevens’ Opinion is not his appeal to personal
experience as founding a conviction that the death penalty is
1 Baze v Rees 553 U.S., Justice Alito 9 (2008).

2 See e.g. Justice Roberts: “We begin with the principle, settled by Gregg, that capital
punishment is constitutional. See 428 U.S., at 177 (joint opinion of Stewart, Powell and
STEVENS, JJ.). It necessarily follows that there must be a means of carrying it out.” Baze, Id.
Roberts at 9.
3 Lower courts have done so however.
4 AMNESTY INTERNATIONAL, EXECUTION BY LETHAL INJECTION: A QUARTER CENTURY OF
STATE POISONING 2 (2007) available at http://www.amnesty.org/en/library/info/ACT50/007/
2007.
5 Stevens nonetheless joins in the rejection of the petition on grounds of precedent, supra
note 2 at Stevens 18.
Winter 2009 TECHNOLOGIES OF DEATH 3
unconstitutional.6 Instead, the novelty lies in Justice Stevens’ explicit

initiation of correlative legal thinking between the legitimacy of the death
penalty in general and the legitimacy of method used to carry it out. More
specifically, Justice Stevens argues that the move to lethal injection as the
dominant method of execution undermines the retributivist rationale for the
death penalty. His argument draws upon the counter-intuitive nature of the
primary historical shifts in execution technique in America. Why are we
reluctant to injure those who we kill? Why do we cover up and sanitize the
execution of convicted murderers?
The objective of this article is to take up and develop Stevens’
challenge of questioning the correlation between the historical development
of execution methods and the fundamental legitimacy of capital
punishment in general. It will be argued that two shifts – the move of
executions from the public to the private realm and technological
refinements in the machinery of death – are at odds with the primary stated
rationales of capital punishment in America, in particular those of
retribution and deterrence. The paper will then conclude that this tension
reveals a fundamental societal ambivalence about the death penalty in
America which may ultimately lead us to accept what Bedau has described
as ‘Schwarzschild’s Paradox’: the notion that some methods of execution
are worse than others, but that none are better.7
II. ADVANCEMENT IN THE METHOD OF STATE KILLING
Baze v Rees fiercely divided both the court and the wider populace
alike. The seven-two result was announced through seven separate
opinions, with only three Justices joining to form the plurality opinion. In
its rejection of the constitutional challenge to Kentucky’s lethal injection
procedures, the court ended a seven month national moratorium on
executions and generated fervent criticism for doing so.8 Now one might be
surprised that such controversy could arise out of the mere risk that a
convicted murderer, being put to his legally sanctioned death, would suffer
some pain in the process. Yet the controversy is barely a new one in the
Anglo-American death penalty experience. To the contrary, it can be seen
as the latest phase in what Austin Sarat has described as the “triumph of
progress applied to the technologies of death”.9 From hanging to
6 See Justice Blackmun dissenting in Callins v Collins 510 U.S. 1141 (1994).
7 Hugo Adam Bedau, Imprisonment vs Death: Does Avoiding Schwarzschild’s Paradox
Lead to Sheleff’s Dilemma?, 54 Albany Law Rev. 481.
8 See e.g. Gilbert King, Cruel and Unusual History, N.Y.TIMES, April 23 2008; National
Coalition to Abolish the Death Penalty, Baze Ruling Sidesteps the Critical Issues, Death Penalty
System Remains as Flawed as Ever, http://www.ncadp.org/news.cfm?articleID=212.
9 AUSTIN SARAT, WHEN THE STATE KILLS 65 (Princeton University Press) (2001).
electrocution, from electrocution to lethal gas, from electrocution and lethal

gas to lethal injection the country has moved gradually from one
technology to another as its favored execution method. At each stage on the
journey, the reformers have denounced all previous methods as barbaric
and archaic.
“The point is to make what you see as uneventful as possible,”
lectured C.J. Drake, the spokesperson for the Florida Department of
Corrections, shortly after that state completed its first two executions by
lethal injection.10 Drake’s hypothesis is striking insofar as it embodies the
end point of a process of concealment and de-dramatization applied to
execution methods. Indeed, Lofland has persuasively argued that to
contrast English and American state executions at 1950 with those around
1700 is virtually to contrast diametrically opposed strategies of
dramaturgical concealment and openness.11 His thesis is illustrated by
reference to a range of features central to the execution experience: death
wait, confinement, time, trip, place, witness, executioner, condemned,
technique, corpse disposal and death announcement. Our interest lies
primarily in the death technique, and an assessment its dramaturgic overlay
consists of nine relevant aspects: the reliability of the technique, the
temporal duration, the amount and kind of noise, the amount of pain, the
amount and kind of sound if elicits from condemned, the amount and kind
of bodily mutilation, the amount of movement by the condemned, the
visibility of the condemned and the amount and kind of odors.12
Lofland reasons that if we want to heighten the spectacular quality of
execution and in doing so make “inescapably clear the existential fact that
a human being is being killed”, the technique employed “should be highly
unreliable and ineffective, take a long time to work, make a great deal of
noise, mutilate the body and inflict terrible pain, causing the condemned to
cry out in anguish and struggle strongly to resist- all of which actions are
highly visible to witnesses and accompanied by noxious and abundant
odors.”13 Thus it follows that to recognize Drake’s stated aim of making
the event as uneventful as possible, we should do exactly the opposite. It is
submitted that two broad trends in the historical development of execution
techniques reflect the move to a concealed dramaturgic overlay of state
executions: the first is the move from public to private executions,
encapsulated by Lofland’s visibility criteria; the second concerns the search
for a technology designed to kill without explicit injury or violence, which
10 KAUFMAN OSBORN, FROM NOOSE TO NEEDLE 179 (University of Michigan Press) (2002)
(citing SARASOTA HERALD TRIBUNE, March 3, 2000).
11 John Lofland, The Dramaturgy of State Executions, in STATE EXECUTIONS VIEWED
HISTORICALLY AND SOCIOLOGICALLY, 275-325 (H. Bleackley and J. Lofland eds., 1977).
12 Id. at 309.
13 Id. at 310.
implicates in particular those of Lofland’s criteria pertaining to the

perceived or actual pain experienced by the condemned.
A. The Hidden Reality: from public to private executions
Prior to the 1830s, executions were public events in part designed to

deter the commission of future crimes by illustrating the severe
consequences of criminal wrongdoing. They generally took place in town
squares and the location facilitated the presence of large viewing crowds.
Some 20,000 -30,000 people are reported to have attended a hanging in
Lancaster, Pennsylvania in 1822, with as many as 2000 having traveled
from surrounding counties.14 Those who attended witnessed a gruesome
spectacle, with the majority of capital offenders being strangled to death by
a noose, their bodies contorting in the air for all to see. The visual scene
was often supplemented by lectures and sermons on the importance of civil
order.15 In case people were left with any doubts, the dead bodies of the
condemned were often left on display for days and even months after
execution.
But in the 1830s the phenomenon of the public execution began to
come to an end. State legislatures started to mandate that executions be
performed inside the prison walls, and by 1845 all states in the North East
and mid-Atlantic region had made this change. Today the death penalty has
completely transformed from the dramatic spectacle that was commonplace
before the 1830s to a cool, bureaucratic operation with the role of the
public now strictly limited and tightly controlled. Witnessing an execution
is now a ‘privilege’ accorded only to public officials, family members and
screened representatives of the general public. Today, capital punishment
has become something of a hidden reality. In the words of Bedau: “the
relative privacy of executions nowadays (even photographs of the
condemned man dying are almost invariably strictly prohibited) means that
the average American literally does not know what is being done when the
government, in his name and presumably on his behalf, executes a
criminal.”16
14 Jonathan S. Abernethy, The Methodology of Death: Re-examining the Deterrence

Rationale, 27 Colum. Hum. Rts. L. Rev. 379 (1995-1996) (citing NANCY K TEETERS, HANG BY
THE NECK 34 (1967)).
15 LOUIS P MASUR, RITES OF EXECUTION: CP AND THE TRANSFORMATION OF AMERICAN
CULTURE 1776-1865 26 (Oxford University Press) (1989).
16 HUGO ADAM BEDAU, DEATH PENALTY IN AMERICA 13 (Oxford University Press) (3rd ed.
1982).
B. Perfecting the Technology of Death
“Make a good job of this”

- William Kemmler, first person electrocuted in the US, 1891
Kemmler’s plea, albeit a strikingly personalized one, aptly accords

with our second general historical trend in execution method: that is, the
attempt to find a technology of killing that is free from explicit injury or
violence. This trend is reflected in the acceptance and subsequent criticism
of the four principal methods of execution used in the US: hanging,
electrocution, gas chamber and lethal injection.17
1. Hanging
Prior to the 20th Century, hanging was the most common execution
method in America. In fact at the middle of 19th century, “hanging was the
near universal form of execution in the US.”18 Despite its popularity as an
execution method throughout history, hanging regularly resulted in slow
and painful deaths. In the words of Gatrell, “neither the introduction of the
Newgate drop in 1783 nor... . .lengthy debates a century later about the
ratios between body weight and drop ever succeeded in converting the
gallows into an efficient instrument of death.” Even as recently as 1978,
Gardner pointed to a mass of evidence of bungled hangings.19 The problem
is a crude one: when the condemned is dropped too far, decapitation
results,20 yet when the condemned is dropped too short to break the neck he
or she will suffer death by strangulation. Consistently finding the middle
ground between these dire alternatives proved elusive, with Gardner
concluding that strangulation was the rule rather than the exception.
The perception of hanging as an inefficient death method is amply
substantiated by eyewitness accounts. A former San Quentin warden, who
had witnessed in excess of sixty hangings, observed that:
“the wheezing can be extremely loud, like the hysterical squealing of a
17 A fifth method, the firing squad, has long been favored by military. It has been used twice
in the US in the modern execution era: Gary Gilmore in 1977 and John Albert Taylor in 1996,
both in Utah.
18 Justice Blackmun dissenting from denial of certiorari in Campbell v Wood, 511 US 1119
(1994); Deborah W. Denno, Getting to Death: Are Executions Constitutional? 82 IOWA L.R. 319,
364.
19 Martin R. Gardner, Execution and Indignities- An Eighth Amendment Assessment of
Methods of Inflicting Capital Punishment, 39 OHIO ST. L.J 96, 120 (1978).
20 In January 2007 the Iraqi Government, operating under US authority, executed Barzan
Ibrahim al-Tikriti, half brother of Saddam Hussein. In a highly publicized execution designed to
show the Iraqi government’s committed to western standards of justice, Mr Ibrahim was
decapitated when dropped from gallows.
dying pig. The victim may bob up and down like a yo-yo. It may even be
necessary for a guard to hold onto his legs so his violent churnings do not
break the rope. A poorly placed rope occasionally gouges out a chunk of
the face and head. There have been cases where the head has been
completely ripped off.”21
2. Electrocution
By 1886, the deficiencies of hangings led the 1886 New York State
Legislature to establish a commission to study and report on “the most
humane and practical method known to modern science of carrying into
effect the sentence of death in capital cases.”22 The report resulted in the
1888 approval of the nation’s first electric chair, enthusiastically described
by the New York Times as “euthanasia by electricity.”23 Electrocution as a
method of execution spread until the late 1920s, when over half of the then
existing death penalty states were using the electric chair to execute capital
offenders. Again, the ostensible goal of the adoption of electrocution was to
minimize pain for the condemned. But many experts contended that even
when performed correctly, the electric current would sometimes only touch
one of the brain’s four parts, so the individual retained consciousness and a
keen sense of agony.24 The most notorious ‘botched’ electrocution occurred
on July 8 1999, when Allen Lee Davis’ execution in Florida’s electric chair
went awry, gathering worldwide notice and condemnation. In fact, the
Florida Supreme Court’s color photographs of the executed Davis received
so many views from the several millions of viewers that the court’s
computer system crashed and was disabled for months afterwards.25
Justice Brennan’s summary of the eyewitness accounts corroborates
that electrocutions might often constitute a painful and violent experience
for the condemned:
“Witnesses routinely report that, when the switch is thrown, the
condemned prisoner ‘cringes,’ ‘leaps’ and ‘fights the straps with amazing
strength.’ ‘The hands turn red, then white and the cords of the neck stand
out like steel bands.’ The prisoners’ limbs, fingers, toes and face are
severely contorted. The force of the electrical current is so powerful that
the prisoner’s eyeballs sometimes pop out and ‘rest on (his) cheeks.’ The
prisoner often defecates, urinates, and vomits blood and drool.
21 IAN GRAY AND MOIRA STANLEY, A PUNISHMENT IN SEARCH OF A CRIME 24 (1989).

22 In Re Kemmler, 136 US 436, 444 (1890).
23 Quoted in Abernethy, supra note 14 at 400.
24 Gardner, supra note 19 at 125-26.
25 Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind
State Uses of Electrocution and Lethal Injection and What it Says About Us, 63 OHIO ST L.J at 6
(2002).
‘The body turns bright red as its temperature rises’ and the prisoner’s
‘flesh swells and his skin stretches to the point of breaking.’ Sometimes the
prisoner catches on fire, particularly ‘if he perspires excessively.’
Witnesses hear a loud and sustained sound ‘like bacon frying’ and ‘the
sickly sweet smell of burning flesh ‘permeates the chamber.’ This ‘smell of
frying human flesh in the immediate neighborhood of the chair is
sometimes bad enough to nauseate even the Press representatives who are
present.’ In the meantime, the prisoner almost literally boils: ‘the
temperature in the brain itself approaches the boiling point of water,’ and
when the post-electrocution autopsy is performed ‘the liver is so hot that
doctors have said that it cannot be touched by the human hand.’ The body
is frequently badly burned and disfigured.26
It seems that for many of the condemned, electrocution was a
particularly gruesome form of euthanasia.
3. Gas Chamber
In response to the perceived need for a more efficient method of

execution than the electric chair was providing, some states introduced the
gas chamber as an alternative.27 Indeed, the gas chamber was widely
believed to be more humane than the electric chair, based on the notion that
it is less explicitly violent and does not mutilate the condemned’s body. In
this regard, it is significant that no state has ever moved from use of lethal
gas to use of electrocution, while a plethora of states have shifted in the
reverse direction.
Typically, the gas chamber involves inhalation of cyanide by the
condemned, causing interference with enzymes in the respiratory system
that transfer oxygen from blood to cells in his body. Without oxygen, the
inmate loses consciousness and dies. Such was the early confidence in this
method of execution that the original Nevada legislation adopting it
professed that the inmate would die “while asleep in his cell”; but the
practice was not quite as pleasant as envisaged. Gray and Stanley have
highlighted “evidence of extreme horror, pain and strangling. The eyes
pop. The skin turns purple and the victim begins to drool. It is a horrible
sight.”28 By 1994, a “national consensus” concluded that lethal gas was not
an acceptable method of execution because of the cruelty involved.29
26 Justice Brennan dissent from denial of certiorari in Glass v Louisiana, 471 US 1080, 1086-
88.
27 BOWERS, LEGAL HOMICIDE 12.
28 IAN GRAY AND MOIRA STANLEY, A PUNISHMENT IN SEARCH OF A CRIME 35 (1989).
29 Denno, supra note 25 at 8.
4. Lethal Injection
The idea of executing criminals by poison is as old as Socrates. It

might seem strange therefore, that the first lethal injection statute in the US
did not appear until 1977. After its late inauguration, however, execution
by lethal injection caught on rapidly. A total of 36 states have now adopted
lethal injection as the exclusive or primary means of implementing the
death penalty, making it by far the most prevalent in the country.30 In
addition, it is the Federal Government’s method of choice.31 The most
common lethal injection procedure is the one adopted by Kentucky: the
three drug protocol at stake in Baze v Rees. The first drug is a sedative,
sodium thiopental, given to render the prisoner unconscious. It is then
followed by a paralytic, pancuronium bromide, which inhibits all of the
condemned’s movement, including their breathing. The third and final
drug, potassium bromide, stops the heart by inducing a cardiac arrest. Each
of the three drugs, in the large dosages called for in the protocols, is
sufficient itself to cause the death of the prisoner.32
Ideally, lethal injection resembles a medical procedure, as the
anaesthetized patient is painlessly put to sleep. But as with the other
execution methods examined, there is substantial evidence of a significant
gap between theory and practice. Thus, if the executioners administer an
insufficient amount of the first drug or administer the drugs out of
sequence, inmates will remain conscious while their muscles are paralyzed
until death by the final toxin. Indeed the allegedly high risk of this result
occurring in Kentucky, by virtue of that state’s lack of effective procedures,
formed the petitioners’ central argument in Baze. Moreover, if the
executioner injects drugs into the muscle or the veins in the wrong
direction, the condemned will suffer intense pain before death. This latter
difficulty is said to explain why John Autry was in agony for more than ten
minutes before he died.33
The likelihood of these and other technical difficulties occurring is
vastly enhanced by the medical profession’s ethical prohibition against
assisting executions known as the ‘Hippocratic Oath,’ reflected in the
American Medical Association’s statement that “An individual’s opinion
on capital punishment is the personal moral decision of the individual. A
30 Baze, supra note 1 at Roberts CJ 3, FN 1.

31 18 U.S.C. s3591 (2000).
32 SO LONG AS THEY DIE: LETHAL INJECTIONS IN THE UNITED STATES, HUMAN RIGHTS
WATCH (2006), http://www.hrw.org/reports/2006/us0406/.
33 Julian Davis Mortenson, Earning the Right to be Retributive, 88 IOWA L.R. 1099, 1124
(2002-2003) (citing Stacey A. Ragon, Comment, A Doctor’s Dilemma: Resolving the Conflict
Between Physician Participation in Executions and the AMA’s Code of Medical Ethics, 20 U.
DAYTON L. REV. 975, 976-77 (1995)).
physician, as a member of a profession dedicated to preserving life when

there is hope of doing so, should not be a participant in a legally
authorized execution.”34 A plethora of international bodies have taken a
similar stance to the AMA in concluding that participation in executions is
a breach of medical ethics, including The World Medical Association, The
World Psychiatric Association, The International Council of Nurses and
The Standing Committee of European Doctors.35
For the purposes of the Hippocratic oath, the definition of
‘participation’ is a broad one. The AMA includes as prohibited actions
monitoring vital signs, attending or observing as a physician, rendering
technical advice regarding the executions, selecting injection sites, starting
intravenous lines, prescribing, preparing, administering or supervising the
injection of drugs, inspecting or testing lethal injection devices, and
consulting with or supervising lethal injection personnel.36 The wide
ranging prohibition is not universally obeyed; some physicians ignore the
ethical guidelines and offer their help during lethal injections, free from
repercussions. However, medical ethics is undoubtedly a strong limit on the
effective administration of the lethal injection procedure, a point recently
illustrated by California’s inability to find to find anesthesiologists to
participate in the execution of Michael Morales.37 This particular inmate
was fortunate, insofar as a federal court order precluded the execution from
being carried out in the absence of medical professionals; many other
condemned are put to death by an execution team lacking any personnel
trained in anesthesia.
As with other execution methods, eyewitness reports contradict
characterizations of lethal injection as uneventful:
“In 1992 State of Oklahoma executed Robyn Lee Parks by lethal
injection. Observers witnessed gruesome scene. Movements after
executioners administered the drugs. . .. . .. . ...Parks gasped and violently
gagged. His head jerked toward his right shoulder. . ..Muscles in his jaw,
neck and abdomen began to contract spasmodically for approximately 45
seconds. . ...The rhythmic jaw clenching returned for a few seconds. . ...
Less than two minutes after (the execution began) Parks’ body began
bucking under straps that held him to a gurney. He spewed out all the air
in his lungs, spraying a cloud of spit. . .The death looked scary and ugly. .
...Several times, Parks groaned and turned his head back and forth his eyes
tightly shut. A vein on the left side of his neck stood out thickly.
34 Quoted in Federman and Holmes, Caring to Death: Health Care Professionals and Capital
Punishment, Punishment & Society Issue 2, 441 at 448 (2000). The position statements of the
American Nurses Association and the International Council of Nurses are similar.
35 Amnesty International Report, supra note 4 at 20-21.
36 Human Rights Watch Report, supra note 32.
37 Baze supra note 1 at Alito 3.
It looked painful and inhumane.”38

More succinctly, one frequent witness to lethal injections asserted, “in
the final analysis, it looks disgusting, the inmates routinely choke, cough,
spasm and writhe as they die.”39
In Baze, the petitioners offered a solution to the flaws of the currently
favored procedure, advocating a move to a lethal injection consisting of a
single dose of sodium thiopental or other barbiturate. 40 The Supreme Court
rejected this proposal, noting that insufficient evidence had been advanced
to substantiate the petitioner’s claim that the single dose formula was an
improvement. It is clear that controversy over the technologies of death is
set to continue.
III. EXPLAINING THE SHIFTS – HUMANE MOTIVES?
The dual transformations described – the movement from public to

private executions and the refinement of the execution method – conform
to Lofland’s dramaturgy of concealment insofar as they increasingly
obscure the fact that a human is being killed. But Lofland is keen to
distinguish the dramaturgy of concealment from the concept of
humaneness, stressing that the dramaturgic overlay thesis deals with the
function and consequences, not the causes, of social arrangements.
Thus if Lofland’s analysis tells us how executions in America are
becoming a non-event, we might ask why? It is easy to see the dual shifts
solely in terms of humaneness: respectively geared at protecting the dignity
of the condemned and reducing the pain he would feel. However, a proper
account of the developments must recognize the influence of a plethora of
motivations and forces.
A. From Public to Private Executions
In his discussion of the Act to Provide for Carrying out of Capital

Punishment in Prisons 1868 in England, Gatrell cogently argues that the
move from public to private executions was civilizing and sanitized, but
contrary to the assertions of MPs and historians, not humane.41 In fact the
urgent explanation for the abolition of public executions lay in concerns of
public order, with the Home Secretary who introduced the Bill in 1868
pointing away from ‘noose violence’ towards that of the crowd.42 Gatrell,
38 Mortenson supra note 33 at 1101.

39 Megan S. Skelton, Lethal Injection in the Wake of Fierro v Gomez, 19 T. JEFFERSON L.R. 1
at 30 (1997).
40 Baze v Rees Brief for Petitioners 51-7.
41 V.A.C GATRELL, THE HANGING TREE 589-611 (Oxford University Press) (1994).
42 A similar desire to quell the misbehavior of large crowds motivated the shift in the US, see
however, provides a broader analysis of the shift as rooted in aesthetics,

aimed at appeasing the ‘squeamish culture’ generated by a long-term
process of social sanitization.43 To evidence his theory, Gatrell cites John
Stuart Mill’s view that “the spectacle, and even the very idea of pain, is
kept more and more out of sight of those classes who enjoy in their fullness
the benefits of civilization.”44 On this construction, the shift from public to
private executions was motivated not out of sympathy for the condemned,
but rather by the sensibilities of an elite class of the public.
Such an account of the advent of the hidden execution accords with
Elias’ theory of the ‘civilizing process,’ an explanatory account linking
developments in Western sensibility and psychology to wider changes in
social organization and modes of interaction.45 One of the defining features
of this process Elias identifies is privatization, whereby certain aspects of
life disappear from the public area and are hidden behind the scenes of
social life. The civilizing process may redeploy, sanitize, and camouflage
disciplinary and other violence without necessarily diminishing it. Thus
Elias’ theory is not a Whiggish narrative of moral improvement; despite his
unfortunate use of the term ‘civilizing’ with all its semantic baggage, he
does not seek to determine whether the change is better or worse. Instead
his civilizing process reflects Foucault’s account of ‘humanitarian’ penal
reform which portrays the new prisons system as a different configuration
of power, rather than as more lenient or morally superior to their
predecessors.46
By placing capital punishment behind closed doors, Parliament
defended the polite Victorian elite’s representation of their own civility by
“silencing plebeian mockery” of that representation. 47 Gatrell concludes
that in doing so, Parliament ensured the very continuance of capital
punishment in England. The instrumental significance of the shift
highlights that the placement and retention of executions behind closed
doors served the political aims of capital punishment supporters bent on
preserving the institution in any form. In this respect, a modern parallel to
the 1868 Act lies in the resistance to efforts to televise executions, on the
basis that “invisible and supposedly painless executions are designed to
Abernethy supra note 14 at 491 (citing WILLIAM J. BOWERS, EXECUTIONS IN AMERICA 5

(1974)).
43 Gatrell, supra note 41 at 596.
44 Id. at 596 citing JS Mill, Civilization (1836) in ROBSON (EDS) COLLECTED WORKS XVIII:
ESSAYS ON POLITICS AND SOCIETY 130-1 (Toronto) (1977).
45 NORBERT ELIAS, THE CIVILIZING PROCESS, I. THE HISTORY OF M ANNERS (OXFORD,
1978) (1939).
46 DAVID GARLAND, PUNISHMENT AND MODERN SOCIETY 223 (OXFORD UNIVERSITY
PRESS 1990) (1993).
47 Gatrell supra note 41 at 610.
make them more palatable. Out of sight, out of mind.”48
B. Perfecting the Technology of Death
To account for the historical shift in the execution techniques

employed in America, we must similarly look beyond the concept of
humaneness. Certainly, if a humanitarian concern for individual pain and
suffering were the only issue at stake, we might expect the widespread use
of the guillotine, which remains the gold standard for the instantaneous
death.49 To quote Dr Guillotin himself: “the Device strikes like lightning;
the head flies, blood spouts, the man has ceased to live.” Of course some
have been more explicit than others in their refutation of the relevance of
humanitarian concerns. When questioned about the adoption of the state’s
lethal injection procedures, an official from the Tennessee Department of
Corrections is reported to have replied, “We didn’t discuss pain and
suffering.”50
As with the transition from public to private executions, concerns of
aesthetics have featured prominently. The distress for viewers of execution
by lethal gas led to discontent with the gas chamber and spurred Arizona’s
conversion to lethal injection. Indeed, some witnesses suffered a period of
insomnia and illness afterwards while others describe themselves as
rendered “walking vegetables” for days. Even the state attorney, a major
proponent of the death penalty admitted to “feeling revulsion.”51 A similar
concern for the aesthetics of the execution surfaced in Baze v Rees,
following the state trial court’s finding that the second drug prevents
involuntary movements during unconsciousness that may accompany the
injection of the potassium chloride. In rejecting the petitioners’ arguments
that this drug was superfluous and the one drug protocol a suitable
replacement, Justice Roberts reasoned that the commonwealth has a valid
interest in preserving the “dignity of the procedure,” especially where
convulsions or seizures could be perceived as signs of consciousness or
distress.52 This reference to the dignity of the procedure, contrasted with
the dignity of the individual, catered to the interests that the witnesses and
the executioners have in an execution that is relatively quick and appears
painless. Alper has argued that prison officials are enamored with
pancuronium bromide, because “it ensures every execution looks peaceful
48 Abernethy supra note 14 at 394 (citing Christopher Johns, Televising the Judicial Murder
of People, ARIZONA REPUBLIC, July 31, 1994).
49 Although a humanitarian might nonetheless be upset by the explicit violence of the
guillotine in its desecration of the body.
50 Human Rights Watch Report, supra note 32.
51 Abernethy, supra note 14 at 413.
52 Baze supra note 1 at Roberts 18.
and dignified, regardless of whether that is actually the case.”53 Given the
gravity of the decision to kill, it may seem perverse and absurd to agonize
over questions of decorum and presentation, but it is a fact of political life
that these cosmetic aspects of penalty have been crucial in legitimating
modern judicial killing.54
Developments in the technologies of execution are also partly
attributable to constitutional decisions by the courts. We have already seen
that the Supreme Court has never invalidated a state’s chosen procedure for
carrying out sentence of death as infliction of cruel and unusual
punishment.55 However, the court’s decision in Kemmler marked an
important transformation in its 8th Amendment jurisprudence on the
execution method, as previously the Court had interpreted the Cruel and
Unusual Punishment Clause with static historicism, refusing to bar any
form of punishment not contemplated by 1689 English Bill of Rights, on
which the 8th Amendment is modeled. In Wilkerson v Utah, for example,
the court upheld the constitutionality of firing squads.56 Subsequent cases
reaffirmed followed Kemmler’s rejection of this strictly originalist
approach in favor of a pain evaluation standard. The Court’s 8th
Amendment analysis has since included a dynamic component based on
contemporary norms, including a specific ban on any method of execution
that causes a ‘lingering’ death rather than simple ‘extinguishment of life.”57
Writing on the post-Kemmler jurisprudence, Mortensen has identified
two schools into which lower court decisions on the method of execution
can be categorized: the conservative school which has largely downplayed
the issue of actual pain, by deferring to legislative judgment and comparing
challenged execution methods to historically accepted methods and
contemporary legislative norms; and the minority empirical school which
has analyzed empirical evidence against a negligible pain standard,
focusing on the pain caused by the challenged execution method and the
risk of ‘botching’ the execution under that method. 58
It is the empirical approach that has influenced changes in states’
execution method. In some cases the court directly mandates the change;
thus the Georgia SC in Dawson ruled 4-3 that the state could no longer use
electrocution, explaining that the method’s “specter of excruciating pain
53 Ty Alper, What Do Lawyers Know About Lethal Injection, 1 Harv. L & Pol’y Rev.
(Online) (March 4, 2008), http://www.hlpronline.com at 2. See also Counsel for the State of
Kentucky, during Baze oral argument, justifying the use of the paralytic on ground that it “does
bring about a more dignified death, dignified for the inmate, dignified for the
witnesses”(emphasis added).
54 Garland supra note 46 at 244.
55 Baze, supra note 1 at Roberts 9.
56 Mortensen supra note 33 at 1108.
57 Id. at 1109 (citing Francis v Resweber, 329 U.S. 459, 474 (1947)).
58 Id. at 1107.
and its certainty of cooked brains” constitutes cruel and unusual

punishment under the 8th Amendment. To reach this result, the Court
focused on the “purposeless physical violence and needless mutilation” that
characterize electrocution.59
In other cases, however, the legal influence is indirect, with state
legislatures voluntarily refining their method once a successful challenge
begins to mount. In Bryan v Moore, for example, the Supreme Court
dismissed a challenge to Florida’s electric chair as moot after the Florida
legislature adopted lethal injection as an alternative.60 Denno has argued
that this is by no means an isolated case, but instead forms part of a
systematic effort on behalf of states to change to execution method
whenever it seems likely that the current method is constitutionally
vulnerable. Rejecting the common insistence of legislatures that they are
striving for greater humaneness, Denno contends that changes in the
method of execution are promoted primarily because the death penalty
itself became constitutionally jeopardized through a legal challenge.61
Denno’s emphasis on the prevalence of political rather than
humanitarian influences, may help to explain the lack of thought that went
into the adoption of the currently favored lethal injection protocol. The
three-drug procedure was ‘developed’ in 1977 in Oklahoma by a medical
examiner named Jay Chapman, who stated that he “was an expert in dead
bodies but not an expert in getting them that way.”62 Despite Chapman’s
lack of expertise, the other states followed Oklahoma’s lead, seemingly
determined not to be seen as trailing behind in the ongoing refinement of
execution method. Indeed, the lack of thought put into the procedure was
actually embarrassing in Tennessee: the local media disclosed that the
lethal injection process in use was essentially the protocol for the electric
chair with ‘lethal injection’ cut and pasted over the references to
electrocution.63
Those who favor the continued acceptance of the death penalty will
often be willing to compromise the method of their choice in order to
perpetuate the system. Insofar as hanging had become negatively
associated with lynching and summary justice by 1886, the New York State
Commission’s recommendation to replace it with electrocution might be
perceived in this light. An even more pragmatic set of factors which have
undoubtedly had a bearing in the decisions to switch execution methods are
economic. The move to an acceptance of lethal injection post- Furman was

60 Mortensen, supra note 33 at 1110. The same occurred in California.
61 Denno, supra note 25.
62 Alper supra note 53 at 1.
63 Id. at 5.
partially attributable to the fact that a 10 year hiatus on executions meant

the electric chairs had fallen into disrepair. As the cost to fix them would
have been substantial, lethal injection presented itself as a cheap
alternative, with the North Carolina Department of Corrections calculating
the cost at only $346.51 per person.64
However, we should not rule out the suggestion that genuine concerns
about alleviating the pain felt by the victim have also had some role to play.
There has, after all, been an extensive appeal to the idea of humaneness in
the public discourse. Thus the sponsors of the Oklahoma lethal injection
statute stressed the need to eliminate the “cruelty and inhumanity of
electrocution.” 65 And at the time of California’s adoption of lethal
injection in 1992, Assemblyman McClintock stated a conviction that lethal
injection was “the only form of execution which from our own life’s
experience, we can conclude is entirely devoid of discomfort.” He
continued that “no one knows for sure whether a prisoner suffers in the gas
chamber. . ..With lethal injection, we know exactly what the person is going
through because its exactly what someone undergoing surgery
experiences.”66 We have already seen that similar appeals to the concept of
humaneness have accompanied each shift in method. While we need not
take these statements at face value, given they are made by democratically
accountable politicians, it seems overly cynical to deny them any
significance.
IV. HISTORICAL SHIFTS AND THE RATIONALES FOR CAPITAL PUNISHMENT
In his plurality opinion in Baze, CJ Roberts argued that the “fact that
society has moved to progressively more humane methods of execution
does not suggest that capital punishment itself no longer serves valid
purposes; we would not have supposed that the case for capital punishment
was stronger when it was imposed predominantly by hanging or
electrocution.” 67 Indeed, insofar as Justice Steven’s opinion rests on the
presupposition that the death penalty now has no retributive value, and
cannot deter potential future offenders, it should be rejected. The point is
made aptly by Justice Scalia, who dismisses Steven’s reasoning on the
retribution rationale as amounting to a claim that “if a punishment is not
retributive enough, it is not retributive at all. To state this proposition is to
64 STUART BANNER, THE DEATH PENALTY; AN AMERICAN HISTORY 297 (Harvard

University Press) (2003).
65 Abernethy supra note 14 at 409, citing newspaper articles at the time of the
pronouncement.
66 Quoted in Abernathy, id. at 417.
67 Baze, supra note 2 at CJ Roberts 24, n 7.
refute it.”68
It is suggested, however, that the dual developments outlined in this
paper- the move from public to private executions and the refinement of the
technologies of death- while not defeating these objectives entirely, do
undermine the effectiveness of execution as a means of achieving them.
This is especially true to the extent that the move to conceal and de-
dramatize executions has been motivated by considerations of aesthetics, a
civilizing process or humaneness, as opposed to purely political and
economic factors.
Justice Stevens recalled that the rationales said to justify the continued
imposition of capital punishment in Gregg are threefold: incapacitation,
deterrence and retribution. These justifications will now be examined in
turn.
A. Incapacitation
The dual historical shifts outlined are arguably entirely consistent with
the incapacitation rationale for the death penalty. Indeed, an execution will
incapacitate the offender regardless of the method utilized and the social
domain in which it is carried out.69 Yet it is submitted that incapacitation is
no longer a necessary or sufficient justification for the death penalty. This
is because 48 states now have some form of provision for life
imprisonment without parole, with the majority of these states having made
the switch within the last two decades.70 The recent rise in statutes
providing for life in prison without the possibility of parole leaves
incapacitation with no marginal value in explaining why we would adopt
capital punishment as opposed to this other form of punishment. One might
counter this assertion by pointing out that murderers sentenced to life
imprisonment sometimes kill again in prison; while dead murders
obviously do not. However this argument appears to be an attempt to
legitimize state killing through an appeal to state negligence; the fact that
governmental officials fail to maintain adequate control over inmates
cannot constitute the requisite basis upon which to grant the state an even
greater power over the individual.
It is instructive that abolitionists joined the pro-incarceration activists
and legislators to push through the life without parole statutes.71 The
abolitionists’ interest in supporting such enactments is clear; a recent poll
68 Id. at Scalia 5.
69 Francis supra note 57, even if it takes two attempts.
70 Baze supra note 1 at Stevens 9, FN 10.
71 Note, A Matter of Life and Death; The Effect of Life- Without- Parole Statutes on Capital
Punishment, 119 HARVARD L.R 1838, 1838-9.
indicates that support for the death penalty drops significantly when life
without possibility of parole presented as alternative option.72 Furthermore,
available sociological evidence suggests juries are less likely to impose the
death penalty when life without parole is available as a sentence, a
consideration that drove the Supreme Court to decide in Simmons that
capital defendants have a due process right to require that their sentencing
juries be informed of their ineligibility for parole.73
It is submitted that the advent of life without parole statutes has
defeated the force of incapacitation as a rationale for imposing the death
penalty. We are thus left with two of the Gregg justifications for the
continued imposition of the death penalty that are to be assessed in light of
the shift in the methods of execution. These rationales correspond to the
two main ‘types’ of death penalty defenders- retributivists and
consequentialists.74
B. Retribution
Justice Stevens observed in Baze that retribution animates much of the

remaining enthusiasm for the death penalty. To flesh out this rationale, he
cites Lord Justice Denning, who in 1950 stated that “some crimes are so
outrageous that society insists on adequate punishment, because the
wrong-doer deserves it, irrespective of whether it is a deterrent or not.”75
At the same time however, Stevens comments that retribution satiates the
thirst for vengeance, a natural response to the most of heinous of crimes.76
It is important to appreciate the distinction between these two concepts.
An illustration of the latter, vengeance was reflected in the aftermath
of Timothy McVeigh’s sentence when the media captured the views of a
range of individuals that were personally affected by the Oklahoma
bombing on how McVeigh should be dealt with. Arlene Blanchard, a
survivor of the bombing, explained after McVeigh’s death sentence was
handed down that “death by injection is ‘too good’ for McVeigh. She said
he should be put in solitary confinement for life or simply hanged from a
tree. ‘I know it sounds uncivilized, but I want him to experience just a little
of the pain and torture that he has put us through.’” Meanwhile, William
Baay, an emergency worker who helped remove bodies from the Murrah
Building, was more graphic: “I don’t think conventional methods should be
used. They should amputate his legs with no anesthesia. . .and then set him
72Baze supra note 1 at Stevens 9, FN 11.

73Id. at Stevens 9, FN 12.
74 Sunstein and Vermeule, Is Capital Punishment Morally Required?, 58 STANFORD L.R.,
ISS. 3, 703 (2005).
75 Baze, supra note 1 at Stevens 10.
76 Id. at Stevens 11, FN 15.
over a bunch of bamboo shoots and let them grow up into him until he’s
dead.77 Similar vengeful sentiments were expressed by the mother of a
murder victim, who, after learning about the particulars of a lethal injection
execution, asked: “Do they feel anything? Do they hurt? Is there any pain?
Very humane compared to what they’ve done to our children.”78
Of course, not all relatives and survivors support the brutal execution
of murderers as a means of assuaging their grievances. The academic
equation of the acceptance of victim impact statements in Payne with the
return of revenge illustrates that these views dominate sentiments among
this class of the populace.79 Moreover, such desires are not confined to
victims but are reflected throughout society: by the late night parties
thrown by college students in Huntsville and the widespread circulation via
the Internet of images of a bloodied Allen Lee Davis following his botched
electrocution. For Lynch, these feelings represent “the effective underside
of punishment,” most often expressed in the “populist desire for the
execution to mean something more than a simple elimination process, even
if that desire is rooted in feelings of blood lust and vengeance.”80
Thus, the call for vengeance is a call for the death penalty to be as
much of an event as possible. In stark contrast to the trends towards privacy
and the search for a painless technique of death, vengeance demands
maximum display and maximum and pain. In the 21st Century, perhaps
only countries such as Iran and Saudi Arabia, who continue to purposefully
inflict suffering through especially cruel methods of punishment, such as
stoning, can satiate these demands. Iranian law prescribes that “in
punishment of stoning to death, the stones should not be so large that the
person dies on being hit by one or two of them, nor should they be so small
that they could not be defined as stones.”81 Of course, it is as undesirable
as it is unlikely that America would return to such practices; the Western
World has long since dismissed them as barbaric. It should, however, be
recognized that the call for violent revenge, particularly when it takes an
impassioned plea from a relative of a murder victim, is something we
empathize with, even encourage. Sarat illustrates the point by reference to
the second presidential debate in 1988, when Bernard Shaw asked Michael
Dukakis what he would do if someone raped and murdered his wife, Kitty.
Dukakis responded by saying, “Bernie, you know that I’m against the death
penalty” and swiftly changed the subject. Dukakis was hounded in the
77 Quoted in Sarat, supra note 9 at 64.

78 Id. at 53.
79 Id. at Chapter 2.
80 Osborn supra note 11 at 210 (citing Mona Lynch , The Disposal of Inmate #85271: Notes
on a Routine Execution” in Studies In Law, Politics and Society Vol 20, 25-26 (Sarat and Ewick
eds, 2000).
81 Amnesty Report, supra note 4 at 1.
media for this seemingly emotionless, almost inhuman response, and Sarat
suggests an altogether more acceptable one:
“Of course, I would want anyone who did such a thing to someone I
loved to be made to suffer. Indeed, if I got my hands on him I’d tear him
limb to limb. But the death penalty is something different. What my love
and anger propels me to do is not what our government should do. It
should help heal my pain, but also find ways to punish that do more than
exact the most primitive kind of vengeance.”82
It is precisely this need to separate private desire from public justice
that explains why we condemn a response such as Dukakis’, yet at the
same time reject the methods of death penalty prevalent in Iran. This
distinction explains the law’s denial of vengeance as a legitimate basis for
the death penalty; relying instead on the more legitimate notion of
retribution.
The effort to distance revenge from retribution, to discourage the
former while legitimating latter, has an illustrious history in political and
legal thought. While the vengeful voice to meet brutality with brutality is
portrayed as savage, wild and limitless, retribution is seen as an altogether
more legalistic concept, with its advertised virtues of measured
proportionality, detachment and consistency. While both stem from a
common desire to inflict pain on the source of pain, revenge may be
limitless and misdirected at the undeserving, as with collective punishment.
Retribution, on the other hand, must be limited and proportional – no more
or less than what is deserved, objectively determined. As a categorical
moral imperative for affirming the death penalty, retribution is said to
provide the basis upon which the death penalty is both affirmed and
limited.83
Ardent death penalty supporter Robert Blecker explains that the basic
retributive measure is like for like, or payback, rooted in the biblical
precept “as he has done, so shall it be done to him” (Leviticus 24). By
Kant’s classic retributivism, we impose punishment as abstract duty
without any emotion. The murderer must die, but should not suffer
maltreatment. On this conception, the trends towards a private and
purportedly painless execution are perfectly reconcilable with the dictates
of retribution: the taking of the condemned’s life is sufficient without more.
Yet as Blecker argues, classic retributivism has given way to the more
persistent and popular intuitive retributivism, championed by Adam Smith
in A Theory of Moral Sentiments (1759).84 Embracing human dignity as
82 Sarat, supra note 9 at 248.

83 See the concept of proportionality acting as a limit on capital punishment in the Supreme
Court decisions in Coker, Enmund, Ford, Atkins, and Roper.
84 Robert Blecker, But Did They Listen? The NJ DP Commission’s Exercise in Abolitionism:
primary value, emotive retributivists since Adam Smith emphasize that

every moral question is ultimately an emotional one and unwarranted
mercy to guilty should be perceived as cruelty to the innocent.
Thus our retributive paradigm is one of equivalency, which aims to
exact proportionate, general, and objective punishment without abandoning
appeals to emotion. The move towards a relatively private and painless
method of killing, embodied by the current preference for lethal injection,
stands in tension with emotive retributivism. As Justice Scalia has
highlighted, the “quiet death” caused by lethal is “enviable” and even
“desirable” when compared to the suffering by most homicide victims.85
Execution by lethal injection cannot satisfy the sense of equivalence said to
inform emotive retributivism, quite simply because it represents an attempt
to kill, but only kill, the condemned.
One response to this argument is to take the Albert Camus line that “a
man is undone by waiting for capital punishment well before he dies. Two
deaths are inflicted on him, the first being worse than the second, whereas
he killed but once.”86 Can we find the retributive demands of equivalency
be satisfied by the ‘two deaths’ inflicted upon the condemned? It is
undeniable that for many death row inmates, waiting to die is a torturous
experience.87 However, we should not forget that those condemned to death
by the state are often guilty of multiple killings, invariably inflicted in a
gruesome manner. Insofar as the shift towards lethal injection enables the
condemned to be put to death in conditions akin to a hospital ward, we
should reject the notion that the historical shifts outlined are reconcilable
with intuitive retribution.
Furthermore, if the notions of equivalency and proportionality inform
the retributive rationale underlying the institution of capital punishment, we
might question why capital punishment is no longer tempered to suit the
criminal in question. Historically, those criminals who had perpetrated the
most heinous of offences- such as Damiens’s attempt to kill the sovereign-
would be subjected to an aggravated form of execution, while those guilty
of a lesser offence were afforded the luxury of a comparatively swift and
painless death. The abandonment of differential treatment of those
sentenced to death, is difficult to square with an acceptance of intuitive
retributivism as the justification for capital punishment. By requiring a
painless execution, we necessarily protect the inmate from enduring any
A Detailed Reply (July 23 2007) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=

1002434. This conception is also favored by leading death penalty proponent Ernest Van Den
Haag.
85 Callins, supra note 6 at 1142.
86 ALBERT CAMUS, RESISTANCE, REBELLION AND DEATH 175 (1960).
87 ROBERT JOHNSON, DEATH WORK: A STUDY OF THE MODERN EXECUTION PROCESS,
PART III (Pacific Grove California) (1990).
punishment that is comparable to the suffering inflicted on his victim.

All this is not to say that the current form of execution has no
retributive value whatsoever: taking the life of a murderer is in itself
retributive. The point is that the historical process towards the concealment
and de-dramatization of the execution not only distances state killing from
the widespread societal demand for vengeance; it also pulls against an
effective realization of the retributive rationale’s demands.
C. Deterrence
Of the rationales relied on in Gregg to justify the continued imposition

of capital punishment, we are left with deterrence. Unlike retribution,
deterrence is not presented as an absolute moral imperative of justice, but
instead as an important instrumental goal. In fact, such illustrious names as
Bentham, Eden, and Blackstone viewed the immediate end of punishment
as being to deter future crime. It would, of course, be highly unjust to
punish any person merely to deter others; however the deterrence effect of
just punishment is morally justifiable since the convict volunteered by
risking the punishment with deterrent effects. Koestler has described
deterrence as the “jack in the box rationale” in the capital punishment
context, on the basis that despite countless empirical studies rejecting the
notion that the death penalty actually deters people, the doctrine keeps on
reappearing. Its persistent attraction may well lie in the fact that “it appears
to provide a ‘scientific’ and ‘socially acceptable’ reason in support of the
death penalty.”88 This paper is not concerned with the statistical issue of
whether or not the death penalty can be proved to deter people from
committing murder; but rather with the theoretical inconsistency between a
reliance on the deterrence justification as underpinning the death penalty,
and the dual historical shifts pertaining to the means of state execution
which have been outlined. Again, it should be emphasized that it is not my
contention that the current form of execution leaves the deterrence rationale
for the death penalty completely defunct. Insofar as a potential murderer is
deterred by capital punishment at all, the deterrence might simply lie in the
fact that he will die for his actions, and not that he will die by any particular
method. Yet especially to the extent that they were motivated by
considerations of humaneness, aesthetics or the civilizing process, it is
contended that the dual historical shifts detailed above stand in tension with
the deterrence theory.
Abernathy has described the relevant form of deterrence in this
context as “marginal general deterrence” – the ‘marginal’ aspect directs
our attention to the extent to which the death penalty can be said to deter
88 Abernethy, supra note 14 at 423.

more effectively than life imprisonment, while the ‘general’ element

focuses discussion on the inhibiting effect of the sanction on the criminal
activity of people other than the sanctioned offender.89 There are two
popular conceptions. The first, cost benefit deterrence, assumes a
rationalistic perspective in which human behavior is a function of
individually perceived costs and benefits of alternative choices or actions.
This conception presupposes that the potential killer rationally decides
whether or not to kill after considering the costs derived from the certainty
and severity of punishment. But, as Professor Van den Haag asserts, few
people calculate in the criminal context at all. Rational thought may be
particularly absent in the realm of murder, by and large a crime of passion
with no rational thought preceding it.90 Thus we might be moved to favor a
second manifestation of deterrence, preconscious fear deterrence. On this
theory, people will refrain from actions that have harmful consequences not
because they explicitly calculate and weigh the probabilities of harm but
because of their ‘preconscious fears’ of the risks associated with a
contemplated action. In the words of Van Den Haag, preconscious fear
deterrence is predicated on “the possibility of reinforcing internal controls
by vicarious external experiences.” It is essentially a theory of
subconscious habit formation.
How do these two conceptions of deterrence square with the dual
historical shifts in the methodology of executions? The first shift, the
privatization of executions, stands in tension with both. Under the cost
benefit deterrence theory, one can argue that our hypothetical, rational,
calculating murderer would prefer to be executed in private than in public,
so spare himself from the humiliation of the angry and jeering crowd. Of
course we must admit of exceptions to this generalization, in part because
murderers tend to defy our conception of rationality. So Peter Robinson,
executed in 1841 “loved the fleeting and macabre publicity he received. .
.at the scaffold.”91 But we can safely take Robinson to represent the
exception, rather than the rule. The preconscious fear conception of
deterrence on the other hand, depends on the “effective communication of
threats of punishment and their concrete exemplifications to the public.”92
While it might be suggested that the mystery and indefiniteness of a private
execution could effectively deter through a ‘fear of the unknown’ (if
potential murderer had a vague sense that executions occurred but the rest
was left to his imagination), this cannot overcome the fact that private and
89 Id. at 382.
90 Bowers, supra note 27 at 272.
91 Abernethy, supra note 14 at 389 (citing MICHAEL KRONENWETTER, CAPITAL
PUNISHMENT: A REFERENCE HANDBOOK 50 (1993)).
92 ZIMRING AND HAWKINS, DETERRENCE AND INCAPACITATION 141-42.
underpublicized executions cannot reinforce an individual’s internal

controls in the same way that an exposure to public executions can.
It is further submitted that the second shift- towards an increasingly
painless method of execution- is equally at odds with both conceptions of
the deterrence rationale. Under cost benefit deterrence, our rational,
calculating potential killer would presumably be less deterred by a lethal
injection that a hanging. And under the preconscious fear conception,
meanwhile, the widespread publication of statements on the ‘humane’
quality of a newly adopted technology would undoubtedly loosen the
potential murderer’s internal inhibitions against murder. The comments of
Florida Attorney General Robert Butterworth in the aftermath of a
malfunction during an electrocution that caused a fire encapsulate the fact
that it is the threat of painful death that is likely to deter potential criminals:
“People who wish to commit murder, they better not do it in the state of
Florida because we may have a have a problem with our electric chair.”93
V. EXECUTION METHODS AND THE SOCIETAL AMBIVALENCE
It has been argued that the shifts towards an increasingly private and
painless method of execution have not only distanced the institution of
capital punishment from the popular thirst for revenge, but are also difficult
to reconcile with the very justifications upon which state killing has been
held to rest. From this discrepancy, we can discern a fundamental societal
ambivalence about imposition of the death penalty. As Douglas McDonald,
a Massachusetts research sociologist explains: “Society is at war with itself.
They want to execute people, but they also want to insulate themselves from
the horror of it as much as possible.”94 The shift towards private
executions, which have enabled the general public to adopt an ‘out of sight,
out of mind’ (almost willful ignorance) philosophy to capital punishment,
reflects McDonald’s thesis. The institutional and individual abdication of
responsibility for the death penalty by the criminal system also
encapsulates the societal ambivalence Indeed, Markus Dubber stresses that
participants in death penalty procedures “shift the moral focus of
punishment in order to minimize their sense of justice,” and John Bessler
concludes that the multi-layered process has become so complex that “no
one in the entire criminal justice system is now fully accountable for death
sentences.”95 With the advent of the highly sanitized and medicalized lethal
injection execution method, Foucault’s insight that “justice no longer takes
responsibility for the violence that is bound up with its practice” resonates
93 Sarat, supra note 9 at 63.

94 Abernethy, supra note 14 at 422-3.
95 Federman and Holmes, supra note 34 at 446.
powerfully.96
This is not to say that the pervasive abdication of responsibility for
executions has been unnecessary. On one view, only the lethal injection is a
sufficiently unique method of execution to sustain the state’s categorical
distinction between state killings and criminal homicides.97 Yet it is
contended that the very success of the lethal injection in this regard is also
the cause of its failure. Recourse to the work of Foucault can elucidate the
point. While absolutist regimes of early modern Europe sought to secure
the sovereign’s territorial grip through irregular but awesome displays of
might, their modern liberal counterparts endeavored to govern populations
on a continuous rather than an exceptional basis, aiming to maximize their
nation’s well being, either in terms of aggregate wealth or collective health.
Foucault suggests that these three orders- sovereignty, anatomo-politics and
bio-politics- now coexist in field of ‘governmentality.’ The question we
must ask today therefore, is “whether the lethal injection can successfully
participate in constituting sort of state that can credibly present itself as
institutional complex whose sovereign pretenses are not seriously eroded
by the twin forces of governmentalization and globalization.”98 It is
submitted that the answer must be a negative one. Indeed, it will be recalled
that Foucault’s description of the torture and execution of Damiens,
described in opening pages of ‘Discipline and Punish’(1979) illustrates that
the substantiation of sovereign authority requires a palpable and graphic
demonstration of the utter vulnerability of the human body.99 Contrast the
fate of Damiens with modern executions: punishment is no longer harsh
and terrifying, but peaceful and benign. The use of health care personnel by
states in the lethal injection procedure is designed to alleviate the pain of
death or at least to offer illusion of alleviating pain. Even greater
significance attaches to the ‘agent of welfare,’ symbolically, as they stand
to represent the care of the state for its citizens.100 In fact state killings are
now such deeply privatized, sanitized and medicalized affairs as to be
“literally and symbolically unobservable,”101 aptly characterized by
Zimring and Hawkins as a “non event.”102 By rendering execution a non-
event, the state has rendered it pointless.
96 MICHEL FOUCAULT, DISCIPLINE AND PUNISH. 9 (Trans. Alan Sheridan) (1979).

97 Sarat, supra note 9 at Chapter 3.
98 Osborne supra note 10 at 212.
99 Foucault supra note 96.
VI. CONCLUSION: TOWARDS SCHWARZCHILD’S PARADOX
It has been argued that the discrepancy between the historical

developments in execution method and the stated rationales for capital
punishment generally, elucidates a fundamental societal ambivalence about
the death penalty. I have further sought to illustrate that this ambivalence
can be understood through the writings of Foucault. But to conclude the
challenge of taking up Justice Stevens’ conviction that Baze can “generate
debate not only about the constitutionality of the three-drug protocol, but
also about the justification of the death penalty itself,” a constitutional
footing for the preceding analysis will be advanced.103
Critics of the abolitionist movement have contended, with some
plausibility, that “the last new argument against the death penalty may
have been made by Cesare di Becaria in 1764.”104 In When the State Kills
however, Austin Sarat seeks to break the mould, exhorting us to move
beyond the conventional moral argument and policy debate. To do so, he
argues, we must ask what role capital punishment has played and continues
to play in fashioning the collective identity of our nation. Sarat’s
methodological shift recognizes that to argue against the death penalty by
traditional means, one has to effectively defend the life of Timothy
McVeigh- a tactic that is doomed to failure, given the widespread
sentiments of vengeance highlighted above. Thus Sarat seeks to change the
focus, stressing that in thinking about the death penalty, “the faces we
should be looking at are our own.”105 Justice Blackmun’s dissent in Callins
v Collins stands as the paradigm of Sarat’s ‘new abolitionism’, one which
enables abolitionists to tap into values that are widely shared throughout
America: democracy, the rule of law and a responsible engagement with
society’s most severe social problems. Seen through this lens, the
discrepancy between America’s historical shift to painless and private
executions with the Gregg rationales for capital punishment, and the
pervasive societal ambivalence this discrepancy evinces, can cast doubt on
the ongoing constitutionality of the death penalty. Challenges to the death
penalty based on the method of execution need no longer be dismissed as
sly, or ‘back door’, as was the case in Baze. By developing Justice Stevens’
correlative thinking between the legitimacy of executions per se and the
legitimacy of the methods utilized to carry them out, we might finally come
to realize Schwarzschild’s Paradox: that some methods of executions are
worse than others, but none are better.
103 Baze supra note 1 at Stevens 1.

104 Kaufman Osborn, Regulating Death: Capital Punishment and the late liberal state, 111
YALE L.J. 681 (2001) (book review).
105 Sarat supra note 9 at 250.

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JUSTICE STEVENS AND THE TECHNOLOGIES

2 THE DARTMOUTH LAW JOURNAL Vol. VII:1

In Baze v Rees, concurring in the rejection of the petitioners claim that

1 Baze v Rees 553 U.S., Justice Alito 9 (2008).

Winter 2009 TECHNOLOGIES OF DEATH 3

unconstitutional.6 Instead, the novelty lies in Justice Stevens’ explicit

II. ADVANCEMENT IN THE METHOD OF STATE KILLING

4 THE DARTMOUTH LAW JOURNAL Vol. VII:1

electrocution, from electrocution to lethal gas, from electrocution and lethal

Winter 2009 TECHNOLOGIES OF DEATH 5

implicates in particular those of Lofland’s criteria pertaining to the

A. The Hidden Reality: from public to private executions

Prior to the 1830s, executions were public events in part designed to

14 Jonathan S. Abernethy, The Methodology of Death: Re-examining the Deterrence

6 THE DARTMOUTH LAW JOURNAL Vol. VII:1

B. Perfecting the Technology of Death

“Make a good job of this”

Kemmler’s plea, albeit a strikingly personalized one, aptly accords

Winter 2009 TECHNOLOGIES OF DEATH 7

21 IAN GRAY AND MOIRA STANLEY, A PUNISHMENT IN SEARCH OF A CRIME 24 (1989).

8 THE DARTMOUTH LAW JOURNAL Vol. VII:1

In response to the perceived need for a more efficient method of

Winter 2009 TECHNOLOGIES OF DEATH 9

The idea of executing criminals by poison is as old as Socrates. It

30 Baze, supra note 1 at Roberts CJ 3, FN 1.

10 THE DARTMOUTH LAW JOURNAL Vol. VII:1

physician, as a member of a profession dedicated to preserving life when

Winter 2009 TECHNOLOGIES OF DEATH 11

It looked painful and inhumane.”38

III. EXPLAINING THE SHIFTS – HUMANE MOTIVES?

The dual transformations described – the movement from public to

A. From Public to Private Executions

In his discussion of the Act to Provide for Carrying out of Capital

38 Mortenson supra note 33 at 1101.

12 THE DARTMOUTH LAW JOURNAL Vol. VII:1

however, provides a broader analysis of the shift as rooted in aesthetics,

Abernethy supra note 14 at 491 (citing WILLIAM J. BOWERS, EXECUTIONS IN AMERICA 5

Winter 2009 TECHNOLOGIES OF DEATH 13

make them more palatable. Out of sight, out of mind.”48

B. Perfecting the Technology of Death

To account for the historical shift in the execution techniques

14 THE DARTMOUTH LAW JOURNAL Vol. VII:1

Winter 2009 TECHNOLOGIES OF DEATH 15

and its certainty of cooked brains” constitutes cruel and unusual

59 Denno, supra note 25 at 9.

16 THE DARTMOUTH LAW JOURNAL Vol. VII:1

partially attributable to the fact that a 10 year hiatus on executions meant

IV. HISTORICAL SHIFTS AND THE RATIONALES FOR CAPITAL PUNISHMENT

64 STUART BANNER, THE DEATH PENALTY; AN AMERICAN HISTORY 297 (Harvard

Winter 2009 TECHNOLOGIES OF DEATH 17

18 THE DARTMOUTH LAW JOURNAL Vol. VII:1

Justice Stevens observed in Baze that retribution animates much of the

72Baze supra note 1 at Stevens 9, FN 11.

Winter 2009 TECHNOLOGIES OF DEATH 19

77 Quoted in Sarat, supra note 9 at 64.

20 THE DARTMOUTH LAW JOURNAL Vol. VII:1

82 Sarat, supra note 9 at 248.

Winter 2009 TECHNOLOGIES OF DEATH 21

primary value, emotive retributivists since Adam Smith emphasize that

A Detailed Reply (July 23 2007) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=