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Increasingly Isolated: States’ Misguided Attempts to Preserve the Death Penalty

When an ill-conceived yet deeply entrenched practice loses popularity and becomes less common, it does not always fade away quietly. Rather, there often is a final outburst of activity to preserve the practice by its most die-hard supporters, even though its days are numbered. This dynamic played out in the final days of Jim Crow, as authorities intent on maintaining it became increasingly desperate in their tactics. These extreme measures failed to achieve their goal, but instead horrified the public and quickened the demise of Jim Crow.

A similar dynamic currently may be at work with the American death penalty. Events in recent decades have exposed a system of capital punishment that is deeply broken. Many people were shocked by states’ decisions to execute individuals such as Cameron Willingham[i] and Troy Davis,[ii] despite doubts over their guilt. Estimates now put the overall percentage of innocent people sentenced to death in the US at 4 percent.[iii]Studies consistently find that the death penalty costs states millions more than the alternative of life in prison without parole,[iv] though there is no evidence that capital punishment keeps us safer.[v] In light of these flaws, the death penalty has begun to lose its hold: executions,[vi] death sentences,[vii] and public support for the death penalty[viii] all are in decline in the US in recent decades.

Confronted with these realities, some states – six in the past decade[ix] – have recognized the harm inflicted by the death penalty and repealed it. But other states have taken the opposite tactic, doubling down in their efforts to hang on to capital punishment. Their proposals, some of them enacted, have aimed at expediting executions through shortening appeals, keeping execution methods secret, and reverting to largely abandoned methods of execution. The missteps that have resulted hardly inspire confidence, and almost resemble a comedy of errors – if, that is, human lives were not hanging in balance.

One of the recent pieces of legislation seeking to expedite executions comes out of Florida, which in 2013 passed the so-called “Timely Justice Act.” This law curtailing appeals in capital cases is especially troubling in the context of Florida. Since 1973, Florida has led the nation in the number of death row inmates exonerated – 24.[x] Such a poor track record, one might think, would prompt Florida lawmakers to at least put a hold on executions. But they instead have taken steps that increase the chance of a wrongful execution, with little concern for the fatal mistakes that might result. Florida’s new law currently is being challenged in court.[xi]

Fortunately other states have been loath to rush the appeals process, as Alabama, [xii] California, [xiii] Colorado[xiv,] and Kansas[xv] all rejected or abandoned such proposals last year. Some measures that did succeed in 2014 involved changing the laws governing execution protocols. A substantial obstacle to executions has been states’ inability to obtain the drugs normally used in lethal injections. Drug manufacturers, especially those in the European Union where executions are banned, have taken extra measures to ensure that their drugs intended to save lives do not end up being used for executions.[xvi] In response, some states have begun looking at alternative methods of executions.

Despite opposition from consistent life advocates, such as Shane Claiborne, Tennessee took the macabre step of bringing back the electric chair this past May.[xvii] Some Virginia legislators also tried to bring back the electric chair but failed.[xviii] A bill to implement the firing squad never gained much traction in Wyoming.[xix] And in Missouri, Attorney General Chris Koster, unconcerned with the method’s notorious past, suggested a possible return to the gas chamber.[xx]

Whether this recent push to raid the museums for alternative methods of killing actually leads to more executions is an open question. Any attempts to electrocute or gas death row inmates not volunteering for these procedures almost certainly will prompt legal challenges over their constitutionality. Instead of expedited executions, the end result may be further costly litigation with little results – that is, more of the same paid for by the taxpayers.

Another option some states have pursued is keeping secret the drugs used in executions and the manner to obtain them. Besides violating basic principles of government transparency, such secrecy also can raise the risk of mistakes, which was on full display in Oklahoma last year.

Unlike any event since Troy Davis’ execution in 2011, the botched execution of Clayton Lockett in Oklahoma on April 29, 2014, renewed a national debate over capital punishment. Before Oklahoma’s planned double execution, lawyers had argued that using a largely untested lethal injection procedure and keeping key aspects of it secret posed serious risks to those inmates scheduled to die. The Oklahoma State Supreme Court halted the execution over these concerns but, after lawmakers responded with threats to impeach the justices, the execution eventually went forward. What resulted was a grisly scene: there are reports of Lockett writhing on the gurney and the procedure being stopped, before he eventually died of a heart attack over 45 minutes after the execution’s start. The second scheduled execution was stayed.[xxi]

The Oklahoma Attorney General agreed to a six-month stay on executions until an investigation of the state’s lethal injection methods are completed.[xxii] Still, some Oklahoma lawmakers were reluctant to admit that even a pause is needed. Rep. Mike Christian, who led the charge to impeach the Oklahoma Supreme Court justices, was fine with any execution method, even inmates “being fed to the lions.”[xxiii]

In its rush to execute, Oklahoma had the effect of spurring opposition – and to the surprise of some, conservative opposition[xxiv] – to the death penalty. High profile conservative figures from Rev. Sam Rodriguez[xxv] to S.E. Cupp[xxvi] to Radley Balko[xxvii] all spoke out against the death penalty in the aftermath of the Lockett execution. Repeatedly confronted by events highlighting the incompetence and failures plaguing the death penalty, voices on both the left and the right are becoming bolder in their criticisms of it.