Stepping aside from the perennial debate about whether the state should ever have the power to take the life of a citizen convicted of a heinous crime, there are two legal issues that are making implementation of the death penalty more morally worrisome than ever.
First, can executions be done humanely? Court rulings over the decades have narrowed the means by which the justice system is allowed to administer the ultimate punishment, and the method most states have settled on -- lethal injection -- is turning out not to be especially dependable nor humane.
Second, is the government killing innocent people? The advent of DNA testing has made it possible to more accurately identify guilty parties and, more crucially, reveal miscarriages of justice through which the legal system has sent innocent men to death row.
In 2014, there were three especially disturbing examples of executions gone wrong. In January, a condemned man took 26 minutes to die when Ohio prison authorities tried a new combination of drugs to kill him. In April, an inmate in Oklahoma struggled for 43 minutes after being given a lethal cocktail and finally died of a heart attack, leading Oklahoma’s governor to put all executions on hold. Then, in July, it took Joseph Rudolph Wood nearly two hours to die in an Arizona prison death room after being given a lethal injection. It took so long, in fact, that Wood’s attorneys had time to file appeals to federal and state courts in an attempt to stop the execution.
Relatives of Wood’s victims had little sympathy for the murderer, tearfully telling TV reporters that he did not suffer nearly as much as their loved ones whom he had gunned down. Nevertheless, that understandable sentiment has little to do with the law. The 8th Amendment to the Constitution prohibits cruel and unusual punishment and these botched executions are certainly unusual, if not weirdly cruel. A big part of the problem is that pharmaceutical providers in Europe and the U.S. are shying away from providing states with the deadly drugs they need. The substitute formulas prison authorities have been concocting using drugs they have at hand do not seem to be dispatching the condemned in a neatly clinical way.
Far worse than killers being made uncomfortable in their final minutes of life, though, is the reality that many innocent people have been executed through decades of American history and very likely continue to be. Our cops and courts are not perfect. Lost evidence, lazy police work, racial bias, bad judges, imperfect juries, poor representation of defendants, false confessions -- all these factors combine to deliver wrongful convictions in jurisdictions across the country.
The Innocence Project, which works to uncover miscarriages of justice, reports that DNA testing has exonerated 325 people since 1989. Of those, 20 were on death row. That’s 20 individuals who would have been killed by state authorities if no one had dug up the truth. One has to assume that even now, with greater awareness of the flaws in the system, there are innocent people whose lives may be taken because someone in an official capacity failed to do their job right.
It seems unlikely the United States will join the rest of the civilized world and eliminate capital punishment any time soon. Nevertheless, even if the executioners of America figure out more reliable ways to kill, executions should be put on hold until there is some way to achieve certainty about the guilt of every person on death row. To paraphrase English jurist William Blackstone, it is better for 10 killers to go free than for one innocent man to be wrongfully put to death.