Tuesday, March 24, 2015

Evolving Standards Of Decency: Two Steps Forward, One Step Back

"Evolving standards of decency" is a phrase used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  While the Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society," it feels as if we are getting closer as the death penalty is increasingly seen as too fallible and too costly to remain on the books.

Popular support for the death penalty has fallen significantly.  Six states have repealed it over the last six years, leaving 32 states with the death penalty on their books.  (Nebraska may be next.)  In four other states, most recently Pennsylvania, governors have imposed moratoria on executions, recognizing the inherent problems with their death penalty schemes.  The rate of executions around the country is rapidly declining and imposition of death sentences is at a historic low.  Meanwhile ever more exonerations are uncovering deep flaws in the criminal justice system.  And studies and reports continue to reveal the racist underpinnings of the death penalty.  (Here's the latest on that subject from my friend Marc Bookman.)

Yet some states are going in the other, less evolved, more gruesome direction.  With pharmaceutical companies balking at having their products used in executions, there is a nationwide shortage of the drugs formerly used for lethal injection.  One would hope this would give state officials the plausible excuse to reconsider the efficacy, if not morality, of continuing to kill its citizens.  Alas, some are insisting on finding alternative, even more unsavory solutions (pun intended).  Like diabolical junior chemists, they cobble together their own untested lethal combinations or obtain drugs from unregulated and undisclosed sources and test them on their human subjects.

And so, executions go forward, each one with its own unique set of macabre circumstances that dehumanize executioner and executed alike.  The latest example is Missouri, which just put to death Cecil Clayton, a 74-year old man who suffered from dementia, had an IQ of 71, and was missing a significant part of his brain.  He was the tenth person to be executed this year in the United States (half of whom were people of color, by the way).  In case you're keeping score:  4 in Texas, 2 in Missouri, 2 in Georgia and 1 in Oklahoma.  And for a worldwide perspective, other verifiable executions in 2015 have taken place in Afghanistan, China, Iran, Indonesia, Jordan, Pakistan, Saudi Arabia and Somalia.

Kelly Gissendaner was set to be the first woman executed in Georgia in 70 years, after being denied clemency despite a remarkable transformation that included obtaining a theology degree.  Gissendaner endured hours of anticipatory terror while officials concerned with the "cloudiness" of the lethal drug, weighed whether or not to go forward with the execution anyway.  Doubts over the drug's efficacy finally led to postponement. 

Other states, frustrated with the difficulties in securing lethal drugs, are taking a different route to infamy.  Oklahoma's state house has passed a bill to allow use of a gas chamber (officially, death by "nitrogen hypoxia.")  And Utah's governor just signed a bill to bring back the firing squad (which Oklahoma also authorizes).  Electrocution, hanging and firing squads still remain on the books elsewhere.

Electric chairs and gas chambers were developed to be more humane than hanging, which was the most common method of execution in the U.S. until the end of the 19th Century.  These killing machines, however, proved pretty grisly in their own right, and gave way to lethal injection -- which medical science has belatedly shown is not nearly as painless as believed and, in any event, has become impractical.

The "evolving standards of decency" standard implicitly acknowledges that we are inexorably moving forward; that while we may not be there yet, we are evolving towards a point where the death penalty will become morally unacceptable.  Reverting  back to discarded and disreputable methods of killing seems like a last gasp (pun intended) effort to maintain an unsustainable, barbaric system.  It reeks of desperation and blood lust.


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