Amid a decline in its use and the inauguration of a president who ran on an anti-death penalty platform, it would appear that the struggle against capital punishment in the United States is finally winning. Yet, as public support for the practice declines, there are worrying signs that the practice will persist in different and alarming ways. In Arizona, the Department of Corrections is preparing provisions to reopen the state gas chamber. In South Carolina, a new law compels death row prisoners to choose between electrocution and a firing squad. So much progress has been made in preventing executions, so why are states diversifying and expanding upon their methods?
A HISTORY OF EXECUTION
The US first introduced cyanide gas as an execution method in Nevada in 1924. The very first attempt failed. The state tried to pump the gas into the chamber of prisoner Gee Jon while he slept, but the gas leaked out of his cell. This led to the construction of the sealed gas chamber. However, the horrific nature of gas-chamber deaths saw the practice go out of favour. Historical and medical accounts suggest lethal gas caused excruciating pain and a prolonged death. In the 1983 gas chamber execution of Jimmy Lee Gray, reporters described watching him bang his head against a metal pole for minutes while he died. In the last death by gas chamber in 1999, Walter LaGrand lay dying for 18 minutes, during which doctors believe he experienced unimaginable pain. Today, five states permit the use of lethal gas as a method of execution, but, until last month, the method had largely been de facto eliminated in favour of using lethal injection.
Since the 1970s, only three of 1,532 executions in the US have been by firing squad. The last occurred in Utah in 2010, when Ronnie Lee Gardner selected the method over lethal injection. Whilst sometimes considered a faster and more certain death than the alternatives offered, death by firing squad is not humane. Law professor Phyliss Goldfarb describes the process as “not pain and botch free”. Rather, “the condemned dies from blood loss and loses consciousness… Even when the people in the firing squad hit their target as intended, it may take at least a couple of minutes for the condemned to die and sometimes much longer.” Much like lethal gas, the practice had fallen out of favour, replaced by the more “modern” lethal injection. Yet four states authorise the use of the firing squad: Utah, Mississippi, Oklahoma, and South Carolina. The recent ruling in South Carolina now gives inmates a choice between electrocution in a 109-year-old electric chair or firing squad.
In comparison, hanging is the most common method of execution globally. The last person to be hanged in the US was in 1996. Firing squad is the preferred method of execution in Indonesia and is used in China, North Korea, Saudi Arabia, Taiwan, Yemen, and the UAE. Using lethal gas in a chamber is a rarity. Outside of the US, no other country has adopted it as a constitutional method of execution. However, there are unverified reports that North Korea has used lethal gas on inmates of prison camps in recent years. The UN Human Rights Committee is unequivocal about the gas chamber: it is torturous and inhumane. The lack of gas chamber usage is practical and historical, as it is an expensive and difficult undertaking. Crucially, following the Holocaust, the horror of the practice was so widely condemned that it was effectively exiled. However, only three years after 1945, the US government executed Miran Thompson and Sam Shockley in a gas chamber in California for their role in the Battle of Alcatraz.
ARCHAIC METHODS OF EXECUTION MAKE A COMEBACK
At a practical level, US states are running out of the drugs necessary for lethal injections. Long considered the modern, acceptable form of execution, supporters argue that they kill quickly and painlessly. But the frequency of botched lethal injections has exposed this argument as a fallacy, with paralysing agents masking the victim’s pain and convulsions. Thus, under pressure from protestors and public opinion, pharmaceutical companies are increasingly blocking their drugs from being used in executions. Options to import from abroad are scarce as the European Union and other supranational organisations block pharmaceutical companies from participating in the death trade. This has led states to take desperate and inhumane chances. Courts stayed executions in Arizona after the botched execution of Joseph Wood in 2013. Authorities injected Wood with an experimental concoction of 15 doses of a two-drug combination. He took two hours to die. In South Carolina, the state’s store of lethal drugs expired while death row inmates underwent appeals. States committed to the practice of capital punishment are looking for more available ways to kill.
But that is not the entire story. Support for the death penalty persists. Whilst it is on the decline, it remains a potent political tool. Trump’s administration marked a renewed commitment to capital executions. Under federal death row powers, the Trump administration executed 13 death row inmates in an unprecedented and controversial killing spree. This was a very high federal death toll. Since 1988 and prior to 2020, the federal government had executed three people. The killings did not cease upon Trump’s loss in the election. Rather, between November and January, the federal government killed more people than during any transition period in US history. With such high-profile support for the death penalty, states have become newly emboldened to return to archaic methods, empowered by an administration that energetically pursued death.
The ideological underpinnings of the support for these methods are important and complex. Journalist Adam Serwer explained the calculated menace of Trump’s policies by noting that “the cruelty is the point”. He argued that cruelty was not the byproduct of the Trump administration’s policy, but its raison d'être. This analysis is useful when considering methods of execution. To truly care about finding a “humane” method of execution is to accept that it does not exist. Rather, to support and continue the death penalty, there must be a degree of dehumanisation. And to dehumanise requires cruelty. To kill a human in a gas chamber requires wholesale dehumanisation—for those enabling, facilitating, and supporting it. For many proponents, the cruelty of these methods is the point.
The global context of capital punishment might also offer answers. NGOs and supranational organisations remain concerned about the forms and applications of the death penalty, even as cases decline globally. It is likely that the practice has abated, in part, because COVID-19 disrupted planned executions. As the world reopened in late 2020 and early 2021, it appeared that nations like Iran, Saudi Arabia, and the US were pursuing death penalties with renewed commitment. And the picture may worsen still. Professor Bharat Malkani, lecturer in politics at Cardiff University, noted that “in times of struggle you see support for the death penalty go up”. Globally, this raises concerns as COVID-19 recovery increases hardship and austerity worldwide.
BIDEN SAYS HE IS AGAINST THE DEATH PENALTY, SO WHY CAN’T HE STOP THESE NEW METHODS?
Biden only has direct power over the federal death penalty on federal death row, where around 50 prisoners currently remain, and federal death row tends to use only lethal injection. The federal practice is fraught with historical legal challenges. The Supreme Court held federal death row unconstitutional in Furman v. Georgia. However, it was reinstated in 1988. A president cannot directly control the methods of execution or end the death penalty at a state level. Following Furman, 37 of 50 states enacted death penalty statutes. The states rejected the notion that the federal government could tell them how to dispense capital punishment. Thus, to control the methods of execution in each state would require Supreme Court intervention ruling them unconstitutional or, as has been the trend in recent years, for each state to abolish the death penalty individually. In this context, it would be incredibly difficult for the Biden administration to control methods of execution.
This does not absolve Biden of responsibility. His opposition to the death penalty has, so far, been superficial at best and hypocritical at worst. Instead of immediately introducing commutations or a moratorium on the federal death penalty, his administration filed a brief with the US Supreme Court requesting a reinstatement of the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev. Put to the test, it seems Biden’s opposition to the death penalty is not consistent. UN independent experts have urged Biden to act more decisively to bring capital punishment to an end. Whilst Biden cannot stop the reintroduction of the gas chamber in Arizona, or firing squads in South Carolina, he can make clear that the death penalty has no place in modern America. That his administration has done the opposite in the case of Tsarnaev suggests that it is not a surprise that history is repeating itself in firing squads and gas chambers.
ADVOCATES FOR THE DEATH PENALTY GROW DESPERATE
There is no humane way to execute a person. Capital punishment in any form, anywhere in the world, is a cruel and unusual punishment. There is no “good choice” for those facing death, and no method is more acceptable than another. A return to archaic methods of execution holds symbolic significance. The firing squad went out of favour because, for many, it invoked brutal, extrajudicial punishment—a form of justice to which the USA claimed superiority. The gas chamber evokes specific historical horror. In response to the news of Arizona reopening its gas chamber, Christoph Heubner of the International Auschwitz Committee stated that “the world will finally come apart at the seams if in any place on this earth the use of Zyklon B in the killing of human beings is considered again”. These methods are being introduced precisely because the death penalty is on the decline. As proponents grow more desperate, they turn to any method that might sustain the practice. It is more important than ever that its opponents remain steadfast.