DOES TIMOTHY MCVEIGH DESERVE A PAINLESS DEATH? Lethal Injection And The Illusion That An Execution Is Not Really A Killing

By AUSTIN SARAT

Thursday, May 5, 2001

On May 16, Timothy McVeigh will be executed by lethal injection. His death will be as painless as possible; his suffering, minimized. Furor now surrounds the decision to broadcast the execution via closed circuit television. Yet reports by previous witnesses to other deaths by lethal injection suggest that there will be "nothing to see."

Watching McVeigh die will be like watching someone fall asleep. It will not be the majestic ritual of vengeance that some believe his deed demands. The federal government will put McVeigh to death by lethal injection — rather than another, more painful method of execution — because it wants to sustain the belief that we can execute him without becoming killers ourselves.

That belief is a fallacy. While those seeking vengeance may call for the infliction of pain, the decision to use a painless method of death does not make the government (and the society it represents) any less a killer. Any impression that this is the case is only illusory.

The Voice of Vengeance

From the beginning, the McVeigh case has been marked by strident calls for vengeance. On the day McVeigh was arraigned, a crowd of several hundred gathered outside the Noble

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County Courthouse. As McVeigh was brought from the court, one man shouted "His children should be shot" — presumably in revenge for the deaths of daycare center children that McVeigh had caused.

Someone else who witnessed this scene later explained to a reporter, "They should give him a taste of his own medicine and put him inside a bomb and blow it up."

Two years later, as McVeigh's trial unfolded, a USA Today/CNN/Gallup poll reported that 61% of Americans thought McVeigh should get the death penalty. Yet commentators also noted that "an overwhelming percentage of Americans feel that executing McVeigh is simply not enough. The law's prescribed punishment satisfies neither our sense of justice nor does it requite our desire for vengeance."

Among families of the victims of the Oklahoma City bombing similar sentiments have been prevalent, though by no means uniform. "He's not human," Charles Tomlin, whose grown son was killed in the bombing, remarked. "This is a monster that blew up a building."

Roy Sells, whose wife was killed in the explosion, explained, "It's revenge for me. It's very simple. Look at what he's done. Could anyone deserve to die more?"

Arlene Blanchard, a survivor of the bombing, commented after McVeigh's death sentence was handed down that death by injection is "too good" for McVeigh. Blanchard suggested that McVeigh should be put in solitary confinement for life, or simply hanged from a tree. "I know it sounds uncivilized," she explained, "but I want him to experience just a little of the pain and torture that he has put us through."

William Baay, an emergency worker who helped remove bodies from the Murrah building, said, "I don't think conventional methods should be used. They should amputate his legs with no anesthesia . . . and then set him over a bunch of bamboo shoots and let them grow up into him until he's dead."

As these comments suggest, vengeance demands an equivalence between the pain inflicted in a crime and the pain experienced as part of its punishment. They remind us that there indeed is something unsatisfying, from the perspective of vengeance, about the use of a painless method to execute McVeigh.

A History of Executions Marked by Pain and a Show of Power

In less modern times, these voices might have been listened to, and these gruesome methods actually employed. Historically, execution has not been marked by much concern about the condemned, and the pain he or she may suffer.

Indeed, one scholar notes that, "We've sawed people in half, beheaded them, burned them, drowned them, crushed them with rocks, tied them to anthills, buried them alive, and [executed them] in almost every way except perhaps boiling them in oil."

As the historian and social theorist Michel Foucault puts it, executions generally have been "[m]ore than an act of justice"; they were, in addition, a "manifestation of force." They were always centrally about the display of the majestic, awesome power of sovereignty to decide who suffers and who goes free, who lives and who dies. Methods of execution were chosen for their ability to convey the ferocity of the sovereign's vengeance.

The Modern Search for Painless Death

But today, the execution method of choice, "painless" lethal injection, is used in 35 of the 38 states that allow capital punishment, as well as in the federal system. From hanging to electrocution, from electrocution to lethal gas, from electricity and gas to lethal injection, we have moved from one technology to another. Ironically, with each new invention of a technology for killing, or more precisely with each new application of technology to killing, the law has proclaimed the previous methods barbaric, or simply archaic.

Cases challenging the constitutionality of particular methods of execution are regularly brought before courts in the United States. In the first two such cases to reach the United States Supreme Court, the 1878 case of Wilkinson v. Utah, and the 1890 case In re Kemmler, the Court upheld the use of firing squads, and then electrocution, as means through which the state could take a life.

Significantly, in the latter case, the Court proclaimed that no method of execution could be used if it would "involve torture or a lingering death." It went on to say that the state must not use methods that impose "something more than the mere extinguishment of life."

Other courts have reached similar conclusions. As a Florida Supreme Court judge recently said about death by electrocution, "Execution by electrocution is a spectacle whose time has passed–like the guillotine or public stoning or burning at the stake…. (The) electric chair, by its own track record, has proven to be a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber of Florida State Prison."

In addition, responding to the advent of lethal injection, a judge on the Ninth Circuit Court of Appeals characterized the continuing use of hanging in the state of Washington as "an ugly vestige of earlier, less civilized times when science had not yet developed medically-appropriate methods of bringing human life to an end."

But the search for "humane" methods of execution only papers over the old dynamic of the state avenging death by inflicting it. Nothing but the best will do in the business of state killing. We prefer a technology of death that leaves no trace.

As McVeigh's impending execution demonstrates, the death penalty has been transformed from dramatic spectacle to cool, bureaucratic operation. That a judge can invoke the idea of "medically-appropriate" execution methods shows how far we have come.

Killing Without Becoming a Killer?

Putting McVeigh to death, the government responds to calls for vengeance. Giving McVeigh a death by lethal injection responds to a different imperative. Giving him a kinder, gentler death than his victims — the kind of death that's less violent than what much of society believe he deserves - is part of an effort to mark our difference from him. But we, if we allow society to execute, are killers, too.

Still, by inflicting "painless" death rather than the more painful deaths we might imagine, we convince ourselves that while we are law-abiding, he is lawless. We are "civilized;" he is "savage." Choosing lethal injection serves the functions of marking a boundary between us and McVeigh, and setting us up in a hierarchy far above him.

Supreme Court Justice Antonin Scalia has relied expressly on this hierarchy and boundary to justify lethal injection. In 1994, in the case of Callins v. Collins, Justice Harry Blackmun famously announced that he no longer would "tinker with the machinery of death," and would, as a result, vote against the death penalty in all subsequent cases. Scalia responded that while Blackmun had described "with poignancy the death of a convicted murderer by lethal injection," that death should be compared with what the murderer himself had done — killing "a man [who was] ripped by a bullet suddenly and unexpectedly...[and] left to bleed to death on the floor of a tavern."

Compared to the tavern murder, Scalia remarked, "death by lethal injection was "pretty desirable." How enviable, Scalia continued, is "a quiet death by lethal injection compared with that!"

McVeigh's execution by lethal injection will indeed be, in some sense, enviable, when contrasted with the fates of his victims. And it will leave many of the survivors and families of victims of the Oklahoma City bombing feeling unsatisfied.

They may share the questions raised by the mother of a murder victim in Florida who, upon being told that her child's killer would die by lethal injection, asked, "Do they feel anything? Do they hurt? Is there any pain? Very humane compared to what they've done to our children. The torture they've put our kids through. I think sometimes it's too easy. They ought to feel something. If it's fire burning all the way through their body or whatever. There ought to be some little sense of pain to it."

Executing McVeigh by lethal injection will neither satisfy this desire, nor can it mask the stark reality that when the federal government, acting on behalf of all the citizens of the United States, kills McVeigh, we will have become killers too.


Austin Sarat teaches law and political science at Amherst College. He is the author of When the State Kills: Capital Punishment and the American Condition (Princeton University Press). On May 16, the date set for Timothy McVeigh's execution, FindLaw.com will post an excerpt from When the State Kills, and an interview with Professor Sarat.

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