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The punishment fits the times

The Supreme Court just heard the case brought to determine whether lethal injection constitutes  'cruel and unusual punishment.' But perhaps society isn't as caught up in the method as in the verdict itself. From the Brazen Bull to hanging to the electric chair, the death penalty has evolved through the ages. Have we?

By Jonathan Turley

Nothing becomes politics quite like death. With a presidential election approaching and three important cases before the Supreme Court, the country is once again grappling with the death penalty. Politicians and citizens alike are debating how  - and whether  - we should kill those who kill others.

It is a debate with particular importance to Ralph Baze and Thomas Clyde Bowling Jr., death-row inmates who are challenging the constitutionality of lethal injection as a method of execution in Kentucky. The court is set to issue its first ruling in more than 100 years on the method of executions.

(Illustration by Suzy Parker, USA TODAY)

The debate over the mechanics of execution stretches back to the earliest forms of capital punishment. It seems that, like madness, there must be a method to our morality  - at least when it comes to executions.

As the public has grown more uneasy with the death penalty, it has insisted on less painful methods of execution. Indeed, in the current cases, one of the drugs in the standard "three-drug cocktail" appears primarily for the benefit of onlookers by preventing any manifestation of pain by the subject, even if he is in agony. It reflects a long desire to somehow take the discomfort out of execution. But for whom, the executed or the executioners?

Pain has long been a surrogate issue for a deeper unease with death as a punishment. At one time, pain was part of the purpose of the moral execution. Early practitioners sought ever more gruesome and prolonged methods. Phalaris, the tyrant of Agrigentum (571 to 556 B.C.), used his infamous Brazen Bull, which was designed so that a man placed inside over a fire would roast while his moans were amplified through a series of tubes as soothing music for the tyrant. The Romans punished parricide (murder of a parent) by putting the condemned into a sack with a dog, a rooster, a viper and an ape  - then throwing the sack into the water.

In the USA, executions were recorded almost immediately upon the landing of Europeans. In 1608, George Kendall was executed in Virginia for plotting against the Crown. By 1612, Virginia Gov. Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which mandated the death penalty for virtually any conceivable crime, from trading with the Indians to killing chickens. Colonial executions included hanging, beheading, drowning, burning and breaking at the wheel (where a person was tied to a wagon wheel and his limbs were broken; then the shattered limbs wrapped around the wheel spokes). With the age of enlightenment, the idea of executing someone in a way to heighten suffering came into disrepute as states sought uniform methods of capital punishment.

A walk through the history of capital punishment in the USA is useful in considering where we've been  - and where today's discussion might lead us:

Noosecol Hanging:

With uniformity now the goal, the preferred method quickly became hanging. By 1853, it was the method of execution in 48 states and territories. The ideal is to break the individual's neck at the end of the initial plunge down the rope. But if the rope is too short, the person is strangled to death and can linger for as much as an hour writhing in pain. If the rope is too long, decapitation can occur (as shown in the execution of Barzan Ibrahim, Saddam Hussein's half-brother).

Hangings also became the focus of public disorder with large crowds and heavy drinking. The method robbed society of a sense of moral superiority as men twisted at the ends of ropes before drunken crowds. This led to the anti-hanging movements of the late 19th century. In 1885, New York Gov. David Bennett Hill condemned hanging as coming "down to us from the dark ages." He called upon legislators to look to science for a way of "taking the life ... in a less barbarous manner." A solution was suggested by none other than Thomas Edison: electricity.

Elechair The electric chair:

The use of the electric chair was as much a financial as a moral debate. Edison was in a fierce competition with George Westinghouse over the standard current. Edison wanted the electric chair to use Westinghouse's AC current so that it would be associated with lethality (as opposed to his own DC current). He won both the fight over execution method and the standard current.

The first to be dispatched electrically was William Kemmler in 1890 in New York for the murder of his mistress. It was his case that led the Supreme Court to adopt a hands-off approach on the methods of execution, despite nightmarish failures.

Frederick Leuchter, a mechanical engineer who maintained electric chairs in the 1980s, admitted that, when certain problems occur, "you're literally boiling the person to death." In Wayne Robert Felde's execution in Louisiana in 1988, his flesh was burned off, exposing part of his skull to witnesses. The execution of Allen Lee Davis in 1999 in Florida resulted in blood pouring down his shirt.

The chair can routinely cause hair to ignite, flesh to burn, genitals to explode and ears to burn away. The method is so cruel that it has been denounced in use on animals. Again, society became uneasy with a method that seemed to mirror the overt violence that led to the execution. Though it was used by 26 states in 1949, states soon discovered another appealing method: gas.

Chamber Gas chamber:

The first to die in a gas chamber was Gee Jon in Nevada in 1924. The state first tried to simply pump cyanide into his cell while he slept, but the bars allowed too much gas to escape.

The modern desire to minimize pain found a poor outlet in gas. The effect of the gas is to cause "cellular suffocation" and acidosis (production of lactic acid), creating a sense of drowning or strangulation. As courts began to find it to be cruel and unusual, gas chambers fell out of favor as states again sought the ideal method of execution.

Injeccol Lethal injection:

This form of execution was not particularly new when it became the rage in death circles. The idea of killing someone with injected poisons goes back to 1888. But the method seemed a perfect match for modern sensibilities.

In 1973, California Gov. Ronald Reagan endorsed lethal injection from his personal experience with horses, noting that he knew "what it's like to try to eliminate an injured horse by shooting him. Now you call the veterinarian and the vet gives it a shot and the horse goes to sleep  - that's it." The public embraced the idea, figuring that if it was OK for a beloved mustang, it must be OK for a condemned murderer.

Though in 1977 Oklahoma became the first state to adopt lethal injection, the first to die by the method was Charles Brooks in 1982 in Texas. Thirty-five states and the federal government now use lethal injection. Where the electric chair became the symbol of cruelty of death, lethal injection showed the banality of death. Indeed, the public continues to view it as a benign, antiseptic and scientifically based process despite its casual and unscientific development.

The three-drug cocktail used in all states can be traced to the Oklahoma medical examiner, Jay Chapman. In 1976, a state legislator wanted to avoid the cost of repairing the state's electric chair or building a gas chamber and solicited his advice on alternatives. Chapman suggested the use of "an ultra-short-acting barbiturate" like sodium thiopental and a neuromuscular blocking drug like pancuronium bromide. A third drug, potassium chloride, was later added to stop the heart. Chapman later admitted: "I didn't do any research. I just knew from having been placed under anesthesia myself, what we needed."

Even the amounts of these drugs in the standard protocol were based on convenience or accident. When a Texas official (who helped develop the procedure) was asked why he specified 5 grams of sodium pentothal, he admitted that "the only thing I had on hand was a 5-gram vial. And rather than do the paperwork on wasting 3 grams, we just gave all 5."

The first drug, sodium thiopental, has proved a particular concern. It is so fast-acting and short-lived that patients have reported waking up in the midst of surgery and, while feeling the pain of surgery, being unable to cry out. In a 2005 study of 49 executions in the USA by the respected British medical journal The Lancet, researchers found that 21 individuals were probably conscious when they were killed by the final dose of potassium chloride.

Notably, the second drug  - pancuronium bromide  - preserves the appearance of a peaceful and painless end. Yet, it also prevents a subject from manifesting pain. In Tennessee, it is a crime to use pancuronium bromide to kill pets, but it is used for human executions.

Human error also remains a principal cause of botched executions. In Florida in 2006, prison officials succeeded in not only missing the veins of condemned Angel Diaz, but also shoving the needles through his vein and into his muscle. It took 34 minutes and two doses of chemicals to finally kill him. Also last year, Ohio officials took 27 minutes to find a vein on Joseph Clark, only to have the vein collapse. It then took 30 minutes to find another vein as Clark lay moaning on the gurney. He was declared dead 90 minutes after the beginning of the execution.

Once widely accepted, capital punishment's support has been falling significantly in polls. When asked, only half of the public supports it when given the alternative of life without parole.

Last month, New Jersey became the first state in 42 years to ban the death penalty. As many as 120 people on death row have been exonerated through DNA testing, and in the 36 states that allow capital punishment, executions have reached their lowest level in 13 years. (Last year, 42 people were executed.) Likewise, death sentences have dropped 60% since 1999.

Given the current makeup of the Supreme Court, the Kentucky cases will almost certainly result in an endorsement of lethal injection. The court did not appear to have a majority in oral arguments for striking down lethal injection or even tweaking the three-drug cocktail. Indeed, Justice Antonin Scalia objected that "this is an execution, not surgery."

As citizens demand less pain in delivering death, the focus of the capital punishment debate might be shifting. Reducing the levels of pain or error in executions will not alter the fact that this remains a violent act committed by society. In this sense, pain might have lost its viability as a surrogate for this deeper debate over capital punishment.

Perhaps with the reduction of pain through chemicals and the increase of reliability through DNA, society will be forced to move beyond the surrogates and deal directly with the fundamental moral question: Has death itself become the intolerable element of the death penalty?

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's board of contributors.

Key rulings

The U.S. Supreme Court has evolved with society in its view of the death penalty. While upholding its constitutionality generally, the court has gradually restricted its application  - though with the two Bush appointees, Chief Justice John Roberts and Justice Samuel Alito, that trend could be either arrested or reversed. Here are a few of the most important rulings:

* In 're Kemmler' (1890):Rejected challenge of the use of the electric chair as cruel and unusual punishment under the Eighth Amendment; suggested that the method of execution is primarily a state issue.

* Furman v. Georgia (1972):In a fractured 5-4 decision (with nine opinions), the court struck down Georgia's death penalty statute (which voided similar statutes in 40 states), thus suspending the death penalty and commuting the sentences of 629 people on death row to life in prison.

* Gregg v. Georgia (1976):Upheld new state statutes that created a more careful application of the death penalty based on aggravating and mitigating factors. With such procedures, the court found that the death penalty does not violate the Eighth Amendment.

* Coker v. Georgia (1977):Struck down a death sentence that was rendered for the rape of a woman. Because the woman was not killed, the verdict was deemed excessive under the Eighth Amendment.

* Atkins v. Virginia (2002):Barred the execution of mentally retarded inmates as cruel and unusual (rejecting an earlier decision to the contrary) based on the evolving standards and new consensus of society.

* Roper v. Simmons (2005):Barred the execution of individuals who committed their crimes as juveniles on Eighth Amendment grounds.

By Jonathan Turley

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