Fordham Urban Law Journal Volume 35 | Number 4 Article 4 2008 Methods of Execution and Their ffecE t on the Use of the Death Penalty in the United States Richard C. Dieter Catholic University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Law Commons Recommended Citation Richard C. Dieter, Methods of Execution and Their Effect on the Use of the Death Penalty in the United States, 35 Fordham Urb. L.J. 789 (2008). Available at: https://ir.lawnet.fordham.edu/ulj/vol35/iss4/4 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. METHODS OF EXECUTION AND THEIR EFFECT ON THE USE OF THE DEATH PENALTY IN THE UNITED STATES Richard C. Dieter* INTRODUCTION The legal controversy surrounding lethal injections as a method of execution has profoundly affected the use of the death penalty in the United States in recent years. Unlike previous attacks on various methods of executions, the latest challenges to lethal injec- tion have already held up more executions, and for a longer time than appeals involving such broad issues as race, innocence, and mental competency. These delays, and the incompetence with which some states carry out lethal injections, may also have a broader effect on the public's acceptance of capital punishment. This Article examines the direct effect of this debate on execu- tions, on death penalty legislation to date, and on the public's per- ception of the death penalty in the past few years. Part I of this Article briefly examines how the choice of earlier methods of exe- cution affected the country's perception of the death penalty. Each fundamental change in the method of execution has signaled a change in the underlying purpose of the death penalty and in how people view the state in its role as executioner. Part II concen- trates on the pivotal time when the challenges to lethal injections began to limit the number of executions and precipitated changes in the laws that governed the performance of those executions. Previous challenges to the death penalty delayed executions for days, and few, if any, changes to procedure were required. The current challenges, such as Baze v. Rees,1 however, have resulted in executions being placed on hold for nearly six months. Some states have already reacted to these challenges by changing their proce- dures, and further changes may follow. Part III offers an analysis of what has made the current debate different from those in previous eras, and examines the ways in * Executive Director of Death Penalty Information Center located in Washing- ton, D.C. and Adjunct Professor at the Catholic University School of Law. This Arti- cle was presented at the Fordham Urban Law Journal Symposium in New York City on March 7, 2008. 1. Baze v. Rees, No. 04-CI-01094, 2005 WL 5797977 (Ky. Cir. Ct. Jul. 8, 2005), cert. granted, 128 S. Ct. 372 (U.S. Oct. 3, 2007) (No. 07-5439). 789 790 FORDHAM URB. L.J. [Vol. XXXV which the practice of the death penalty has already been altered in important and lasting ways. Part IV discusses the impact that the lethal injection controversy has had on the death penalty itself. Fi- nally, the Article concludes by examining whether the lethal injec- tion issue could undermine support for the death penalty itself. I. THE IMPACT OF EARLIER METHODS OF EXECUTIONS ON THE DEATH PENALTY For much of the history of the United States, the primary method of execution was hanging.2 Hanging took place in the center of town using a rope thrown over a tree or scaffold. Ameri- cans probably favored this method because of its simplicity as well as its role in sending a strong message to the entire community about the consequences of crime. Hanging required no central fa- cility and allowed for public punishment in front of the community affected by the crime. Even the most rural areas of the country always had access to a rope and a tree. Punishment was for all in the community to see, imparting a moral message along with its death sentence. Citizens thinking of committing a crime might hesitate after seeing a horse thief or runaway slave swinging at the end of a rope. Hangings became popular spectacles, much like human sacrifices or the games in ancient Rome. Tens of thousands of people at- tended some hangings, and preachers delivered sermons.4 Families with children made excursions to see the human drama. But the public nature of hangings was also their drawback. Spectacles do not always produce the desired results, as illustrated by the proliferation of ballads and storytelling about those being hanged and reports of pick-pocketers working during hangings.6 Although hangings and the accompanying crowds continued well into the twentieth century, the state of New York took a radical step away from this common form of execution when it carried out 2. See STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 24 (2002). 3. Id. (describing town hangings as comparable to a "church service"). 4. See generally id. at 24-52; see also ELIZA STEELWATER, THE HANGMAN'S KNOT: LYNCHING, LEGAL EXECUTION AND AMERICA'S STRUGGLE WITH THE DEATH PENALTY 43 (2003). 5. See BANNER, supra note 2, at 28. 6. See, e.g., PETER LINEBAUGH, THE LONDON HANGED: CRIME AND CIVIL SOCI- ETY IN THE EIGHTEENTH CENTURY 216 (1992). 2008] METHODS OF EXECUTION the first electrocution in the United States in 1890.7 New York not only introduced a new method of execution, but also changed pub- lic perception of the death penalty. Given the novelty of this tech- nology and the uncertainty over even what form of current would be used to carry out the electrocution,8 it is doubtful that the choice of this new method was intended solely to provide a more dignified and less painful method of death for the accused. More likely, this innovation served state interests of minimizing the unruliness and sometimes sympathetic nature of hangings. 9 Electrocution brought executions under one roof with relatively few witnesses. This new method of execution also changed the image of the death penalty in the mind of the public.'0 The electric chair re- quired sophisticated machinery, specialized knowledge, and careful preparation. New York executions were no longer public. Offi- cials conducted electrocutions inside the penitentiary with wit- nesses chosen by the prison.'1 Common criminals were no longer hanged in the town commons, but in a location outside the community. The different style of execution reflected a shifting purpose be- hind the death penalty, from one where the state was sending a warning to the community to one where the state enacted retribu- tion on the offender. Stuart Banner, in his recounting of the his- tory of the American death penalty, noted that hangings failed to convey the message intended: "[T]he execution ceremony, by fo- cusing attention on the qualities of the person being hanged, pro- duced as much pity as condemnation."" In electrocutions, the criminal's life was now extinguished with the most advanced and lethal technology available. "Technology would make the death penalty more humane by making it less human." 3 The state's power was dominating and the defendant's demise was ignomini- ous. Instead of a festive crowd and the possibility of being 7. See RICHARD MORAN, EXECUTIONER'S CURRENT: THOMAS EDISON, GEORGE WESTINGHOUSE, AND THE INVENTION OF THE ELECTRIC CHAIR 3 (2002). 8. Id. at 36-62 (noting the debate between the use of alternating and direct cur- rent in the electric chair). 9. See BANNER, supra note 2, at 148 ("staging of public hangings could turn criminals into heroes"). 10. See CRAIG BRANDON, THE ELECTRIC CHAIR: AN UNNATURAL AMERICAN HISTORY 47-48 (1999) (stating that a compromise group was seeking a "better way" to execute because scaffolds, nooses, and hangmen seemed "out of place"). 11. Id. at 181-82 (noting that even the media was barred from attending the first electrocution, a vast difference from the public nature of hangings). 12. See BANNER, supra note 2, at 148. 13. Id. at 184. FORDHAM URB. L.J. [Vol. XXXV remembered in song, the execution was now carried out under the warden's careful eye, out of sight of even the other prisoners. In wielding such power, the government could nevertheless claim that it was being humane, as electrocution promised to be a swifter method of execution than hanging. Of course, this new method had the added advantage that if anything went wrong (as it frequently did),' 4 it was not on display for everyone to see. Almost ninety years later, the shift to lethal injections signaled not only another bow to technology, but also a change in public perception of the death penalty. This shift came after a period of uncertainty for the continuation of the death penalty in general. For the first time in United States history, the Supreme Court halted executions for an extended period in 1972.15 Anticipation of a Supreme Court ruling on the constitutionality of the death pen- alty, followed by the Court's striking down of all existing statutes and death sentences in 1972, resulted in a nearly ten-year morato- rium on executions. 16 Electric chairs and gas chambers sat unused and began to appear antiquated and risky.