{"id":51776,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/does-timothy-mcveigh-deserve-a-painless-death-lethal-injection-and-the-illusion-that-an-execution-is-not-really-a-killing.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"does-timothy-mcveigh-deserve-a-painless-death-lethal-injection-and-the-illusion-that-an-execution-is-not-really-a-killing","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/does-timothy-mcveigh-deserve-a-painless-death-lethal-injection-and-the-illusion-that-an-execution-is-not-really-a-killing.html","title":{"rendered":"Does Timothy Mcveigh Deserve A Painless Death? Lethal Injection And The Illusion That An Execution Is Not Really A Killing"},"content":{"rendered":"\n
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DOES TIMOTHY MCVEIGH DESERVE A PAINLESS DEATH? Lethal Injection And The Illusion That An Execution Is Not Really A Killing <\/h1><\/td>\n <\/tr>\n

By AUSTIN SARAT<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, May 5, 2001<\/td>\n\n <\/tr>\n <\/table>\n

\tOn May 16, Timothy McVeigh will be executed by lethal injection. His death \nwill be as painless as possible; his suffering, minimized. Furor now surrounds \nthe decision to broadcast the execution via closed circuit television. Yet reports \nby previous witnesses to other deaths by lethal injection suggest that there will \nbe “nothing to see.” <\/p>\n

\tWatching McVeigh die will be like watching someone fall asleep. It will \nnot be the majestic ritual of vengeance that some believe his deed demands. The \nfederal government will put McVeigh to death by lethal injection \u0097 rather \nthan another, more painful method of execution \u0097 because it wants to sustain \nthe belief that we can execute him without becoming killers ourselves. <\/p>\n

\tThat belief is a fallacy. While those seeking vengeance may call for the \ninfliction of pain, the decision to use a painless method of death does not make \nthe government (and the society it represents) any less a killer. Any impression \nthat this is the case is only illusory.<\/p>\n\n<\/b>

The Voice of Vengeance<\/p>\n \n

\tFrom the beginning, the McVeigh case has been marked by strident calls \nfor vengeance. On the day McVeigh was arraigned, a crowd of several hundred gathered \noutside the Noble\n\n<\/p>\n \n \n
<\/td>\n\"[disparate<\/span><\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/table>\n\nCounty Courthouse. As McVeigh was brought from the court, one man shouted “His \nchildren should be shot” \u0097 presumably in revenge for the deaths of daycare \ncenter children that McVeigh had caused. \n

\tSomeone else who witnessed this scene later explained to a reporter, “They \nshould give him a taste of his own medicine and put him inside a bomb and blow \nit up.” <\/p>\n

\tTwo years later, as McVeigh’s trial unfolded, a USA Today\/CNN\/Gallup poll \nreported that 61% of Americans thought McVeigh should get the death penalty. Yet \ncommentators also noted that “an overwhelming percentage of Americans feel that \nexecuting McVeigh is simply not enough. The law’s prescribed punishment satisfies \nneither our sense of justice nor does it requite our desire for vengeance.” <\/p>\n

\tAmong families of the victims of the Oklahoma City bombing similar sentiments \nhave been prevalent, though by no means uniform. “He’s not human,” Charles Tomlin, \nwhose grown son was killed in the bombing, remarked. “This is a monster that blew \nup a building.” <\/p>\n

\tRoy Sells, whose wife was killed in the explosion, explained, “It’s revenge \nfor me. It’s very simple. Look at what he’s done. Could anyone deserve to die \nmore?” <\/p>\n

\tArlene Blanchard, a survivor of the bombing, commented after McVeigh’s \ndeath sentence was handed down that death by injection is “too good” for McVeigh. \nBlanchard suggested that McVeigh should be put in solitary confinement for life, \nor simply hanged from a tree. “I know it sounds uncivilized,” she explained, “but \nI want him to experience just a little of the pain and torture that he has put \nus through.”<\/p>\n

\tWilliam Baay, an emergency worker who helped remove bodies from the Murrah \nbuilding, said, “I don’t think conventional methods should be used. They should \namputate his legs with no anesthesia . . . and then set him over a bunch of bamboo \nshoots and let them grow up into him until he’s dead.”<\/p>\n

\tAs these comments suggest, vengeance demands an equivalence between the \npain inflicted in a crime and the pain experienced as part of its punishment. \nThey remind us that there indeed is something unsatisfying, from the perspective \nof vengeance, about the use of a painless method to execute McVeigh. <\/p>\n\n<\/b>

A History of Executions Marked by Pain and a Show of Power<\/p>\n\n

\t<\/p>\n

\tIn less modern times, these voices might have been listened to, and these \ngruesome methods actually employed. Historically, execution has not been marked \nby much concern about the condemned, and the pain he or she may suffer. <\/p>\n

\tIndeed, one scholar notes that, “We’ve sawed people in half, beheaded them, \nburned them, drowned them, crushed them with rocks, tied them to anthills, buried \nthem alive, and [executed them] in almost every way except perhaps boiling them \nin oil.” <\/p>\n

\tAs the historian and social theorist Michel Foucault puts it, executions \ngenerally have been “[m]ore than an act of justice”; they were, in addition, a \n“manifestation of force.” They were always centrally about the display of the \nmajestic, awesome power of sovereignty to decide who suffers and who goes free, \nwho lives and who dies. Methods of execution were chosen for their ability to \nconvey the ferocity of the sovereign’s vengeance.<\/p>\n\n<\/b>

The Modern Search for Painless Death<\/p>\n \n

\tBut today, the execution method of choice, “painless” lethal injection, \nis used in 35 of the 38 states that allow capital punishment, as well as in the \nfederal system. From hanging to electrocution, from electrocution to lethal gas, \nfrom electricity and gas to lethal injection, we have moved from one technology \nto another. Ironically, with each new invention of a technology for killing, or \nmore precisely with each new application of technology to killing, the law has \nproclaimed the previous methods barbaric, or simply archaic. <\/p>\n

\tCases challenging the constitutionality of particular methods of execution \nare regularly brought before courts in the United States. In the first two such \ncases to reach the United States Supreme Court, the 1878 case of Wilkinson \nv. Utah<\/i>, and the 1890 case In re Kemmler<\/i>, the Court upheld the use \nof firing squads, and then electrocution, as means through which the state could \ntake a life. <\/p>\n

\tSignificantly, in the latter case, the Court proclaimed that no method \nof execution could be used if it would “involve torture or a lingering death.” \nIt went on to say that the state must not use methods that impose “something more \nthan the mere extinguishment of life.” <\/p>\n

\tOther courts have reached similar conclusions. As a Florida Supreme Court \njudge recently said about death by electrocution, “Execution by electrocution \nis a spectacle whose time has passed\u0096like the guillotine or public stoning \nor burning at the stake\u0085. (The) electric chair, by its own track record, \nhas proven to be a dinosaur more befitting the laboratory of Baron Frankenstein \nthan the death chamber of Florida State Prison.” <\/p>\n

\tIn addition, responding to the advent of lethal injection, a judge on the \nNinth Circuit Court of Appeals characterized the continuing use of hanging in \nthe state of Washington as “an ugly vestige of earlier, less civilized times when \nscience had not yet developed medically-appropriate methods of bringing human \nlife to an end.” <\/p>\n

\tBut the search for “humane” methods of execution only papers over the old \ndynamic of the state avenging death by inflicting it. Nothing but the best will \ndo in the business of state killing. We prefer a technology of death that leaves \nno trace. <\/p>\n

\tAs McVeigh’s impending execution demonstrates, the death penalty has been \ntransformed from dramatic spectacle to cool, bureaucratic operation. That a judge \ncan invoke the idea of “medically-appropriate” execution methods shows how far \nwe have come.<\/p>\n\n<\/b>

Killing Without Becoming a Killer?<\/p>\n \n

\tPutting McVeigh to death, the government responds to calls for vengeance. \nGiving McVeigh a death by lethal injection responds to a different imperative. \nGiving him a kinder, gentler death than his victims \u0097 the kind of death that’s \nless violent than what much of society believe he deserves – is part of an effort \nto mark our difference from him. But we, if we allow society to execute, are killers, \ntoo.<\/p>\n

\tStill, by inflicting “painless” death rather than the more painful deaths \nwe might imagine, we convince ourselves that while we are law-abiding, he is lawless. \nWe are “civilized;” he is “savage.” Choosing lethal injection serves the functions \nof marking a boundary between us and McVeigh, and setting us up in a hierarchy \nfar above him. <\/p>\n

\tSupreme Court Justice Antonin Scalia has relied expressly on this hierarchy \nand boundary to justify lethal injection. In 1994, in the case of Callins v. \nCollins<\/i>, Justice Harry Blackmun famously announced that he no longer would \n“tinker with the machinery of death,” and would, as a result, vote against the \ndeath penalty in all subsequent cases. Scalia responded that while Blackmun had \ndescribed “with poignancy the death of a convicted murderer by lethal injection,” \nthat death should be compared with what the murderer himself had done \u0097 killing \n“a man [who was] ripped by a bullet suddenly and unexpectedly…[and] left to \nbleed to death on the floor of a tavern.” <\/p>\n

\tCompared to the tavern murder, Scalia remarked, “death by lethal injection \nwas “pretty desirable.” How enviable, Scalia continued, is “a quiet death by lethal \ninjection compared with that!” <\/p>\n

\tMcVeigh’s execution by lethal injection will indeed be, in some sense, \nenviable, when contrasted with the fates of his victims. And it will leave many \nof the survivors and families of victims of the Oklahoma City bombing feeling \nunsatisfied. <\/p>\n

\tThey may share the questions raised by the mother of a murder victim in \nFlorida who, upon being told that her child’s killer would die by lethal injection, \nasked, “Do they feel anything? Do they hurt? Is there any pain? Very humane compared \nto what they’ve done to our children. The torture they’ve put our kids through. \nI think sometimes it’s too easy. They ought to feel something. If it’s fire burning \nall the way through their body or whatever. There ought to be some little sense \nof pain to it.” <\/p>\n

\tExecuting McVeigh by lethal injection will neither satisfy this desire, \nnor can it mask the stark reality that when the federal government, acting on \nbehalf of all the citizens of the United States, kills McVeigh, we will have become \nkillers too. <\/p>\n<\/span> \n

\n

\n\n\n<\/a>\nAustin Sarat teaches law and political science at Amherst College. He is the author of When the State Kills: Capital Punishment and the American Condition<\/u> (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<\/u>, and an interview with Professor Sarat.\n\n\n

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