Capitol Punishment

I promise my next post will be on a happier topic.

This subject has been in the news recently.  The stand out "star" of a lot of this coverage has been the state of Oklahoma.  They were in the news a few months ago because they managed to horribly botch an execution.  They are currently in the news because a case has come before the Supreme Court about their current method of execution and because they have introduced a new method of performing Capitol Punishment:  Nitrogen Asphyxiation.  I'll get to where I stand on Capitol Punishment later.  But first comes the historical tour.  As always, it provides context for what follows.

People, and the governments they have created, have been executing people as far back as we can go.  Execution is the process of killing someone with deliberate intent.  It happens outside of war and is supposed to take place outside the heat of passion.  But states (the generic term for government at any level) have been deciding for one reason or another that one specific person or another needs to die for as long as states have been around.

The most well known historical example is the decision of the Romans to execute Jesus using the "crucifixion" method.  Jesus was not the first person the Romans executed and Rome was not the first state to execute someone.  But it unambiguously establishes for even the most history averse that the practice is more than 2,000 years old.

And the case of Jesus illustrates something else.  The methods change over time and across cultures.  Crucifixion has, to put it mildly, gone out of favor.  There are two methods that have been in use broadly for thousands of years.  One is hanging and the other is beheading.   I am going to discuss hanging first.

We are all familiar with the general technique from hundreds of movies.  A "hangman's noose" is fashioned out of one end of a piece of rope.  The noose is put around the victim's neck and a drop is arranged.  In westerns the drop typically involves a tree and a horse.  In the more bureaucratic situation the victim is stationed over a trap door on a raised platform.  In any case the rope is tied down in such a way that there is some slack.  When the horse is startled or the trap drops the victim falls through a distance whereupon the noose brings him up short.  At that point the noose is supposed to kill him.

It turns out the "kill him" part is trickier than you would think.  My state used to hang people until very recently.  There was a court case a few years ago involving whether or not a specific hanging was likely to go off correctly. The details don't matter.  But a side effect was that a tutorial on hanging appearing in the local paper.  As a result I know far more than I should have to know about the mechanics of the process.  And now you will too.

The first thing to know is that the Westerns get it wrong.  The knot itself is fine.  But the knot needs to be placed at the side of the head.  In most Westerns it is at the back.  What is supposed to happen is that the prisoner's neck gets snapped and the prisoner dies essentially instantaneously.  What could possibly go wrong?  Basically, two things.

The first I have already hinted at.  The neck might not get snapped.  This can happen if the noose is in the wrong position or if the drop distance is too short.  In this situation the prisoner strangles to death.  This may take twenty minutes or longer.  That's not  instantaneous.  What it is is "cruel and unusual punishment".  The second way things can go badly wrong is if the drop distance is too long.  In this case the head can literally be separated from the rest of the body.  Death is quick but it is also messy.

There was supposed to be a secret manual for how to do a proper hanging that state prison officials had access to.  It was supposed to have all the formulas and calculations for getting the drop distance "just right".  But eventually my state decided to abandon hanging in favor of other methods.

The second historical method is one that more obviously evolved out of warfare.  In battle one way to kill your enemy is to cut his head of with a sword.  That's hard to do and from a military perspective seriously wounding the opposing soldier may be as effective or even more so.  So soldiers didn't worry overmuch if they got it exactly right every time.  But executioners did.  So over time the sword got replaced by the headsman's axe.  The idea was the same.  Off with his head.  But the idea was to improve the chances of that happening "first time, every time".  So a special axe was developed.  The idea was that if you put it in the hands of a big strong guy and gave him a chance to practice then everything would go the way it was supposed to.

But sometimes it didn't.  And that resulted in the first "scientific" attempt to improve things.   The Guillotine was invented in France in about 1789.  The device consisted of a heavy blade in a slot.  The prisoner was secured so that, when dropped, the blade would cut his head off at the neck.  It was easy to design such a device that worked very reliably.  Any kinks were rapidly fixed and a standardized design quickly came into universal use.  And, in contrast to the headsman and his  axe, there was pretty much nothing that could go wrong.  The Guillotine was simple, cheap, reliable, and extremely effective.  So why has it fallen out of use?

The Guillotine is intimately bound up in peoples' consciousness with the French Revolution.  During this event large numbers of people were executed with it.  It worked so well that pretty much any group could put one up and start executing people.  And in far too many cases they did.  There is a phase of the French Revolution rightly called "The Terror".  And the French Revolution brought us Napoleon and the Napoleonic Wars.  So people outside France are not fans of the French Revolution.  And many people inside France share this sentiment.  And then there is another thing.

A lot of policy in modern society is driven by the "yuck factor".  It doesn't matter how much sense something might otherwise make, if people think it is yucky they will often opt for a less sensible but also less obviously yucky alternative.  And that's what happened to the Guillotine.  It was associated with the French Revolution.  Yuck!  But there was also the fact that what the Guillotine does is behead someone.  Someone's head ends up falling into a basket and there is blood all over the place.  People find that yucky.  They search for alternatives.

This "yuck" factor also applies to another method of execution, the firing squad. Firing squads date back to before the invention of the Guillotine.  They too are reasonably cheap, simple to pull off, reliable, and effective.  A gun is a highly reliable and simple to operate killing machine.   Ammunition in the quantities necessary to perform an execution is cheap and hitting what you aim at from a short distance away does not require any skill.  But people find other people shooting people at short range with the intent of killing them to be yucky.  So the firing squad has mostly fallen out of favor.

And that brings us to one of the most bizarre pieces of history on this subject that I know of.  In the late 1800's the great, and by this time beloved, inventor Thomas Alva Edison was locked in a titanic corporate struggle over the future of the electrical industry.  Edison was a "DC" man.  His opponents were "AC" men.  The AC side eventually won for very sound technical reasons I am not going to go into.  But Edison understood the power of public relations.  And he set about to use this understanding against his opponents.  He chose as his vehicle, executions.  Edison was directly responsible for the invention of the Electric Chair.

By then it was known that subjecting people to large amounts of electricity could kill or maim them.  Edison's idea was to associate AC electricity with horrible botched executions.  So behind the scenes he arranged for a PR campaign to get the Electric Chair adopted as the preferred and "scientific" method of execution.  He succeeded.  He succeeded in getting Electric Chairs broadly adopted.  He succeeded in getting them to use AC electricity.  He succeeded in getting the fact that Electric Chairs used AC electricity broadly known while keeping his behind the scenes manipulations a secret.  He succeeded in causing a lot of botched executions to take place.  Where he failed was in the war to defeat AC power.  But after the battle was over states kept using Electric Chairs anyhow and they kept presiding over botched executions.

The next step in this peculiar dance from method to method is the Gas Chamber.  As anyone who indulges in Murder Mysteries knows, Cyanide is a poison.  It is easy to turn an innocuous looking and reasonable safe chemical solid called Potassium Cyanide into a chemical gas called Hydrogen Cyanide.  Breathing Hydrogen Cyanide will kill you.  A Gas Chamber is a sealed room.  The prisoner is strapped into a chair in the room.  The room is then sealed up.  Then a mechanism is activated that turns Potassium Cyanide into Hydrogen Cyanide.  Shortly thereafter the prisoner is dead.  The yuck factor is minor because there is no blood and no severed body parts.  But in at least some cases the prisoner, who could be observed through a window in the side of the chamber, appeared to take a long time to die and to be in a great deal of pain.  That sounds cruel.

It should be possible to find a method of execution that is not cruel, is not yucky, and is effective.  The obvious choice was pioneered by, who else, Oklahoma.  It goes by the name of "lethal injection".  The original Oklahoma plan was to inject three drugs, one after the other.  The first drug was an anesthetic.  It put the prisoner to sleep just like in an operating room.  The second drug was a paralytic.  It was supposed to paralyze the prisoner so he didn't move.  The idea was to eliminate any possibility of anything yucky happening other than the death itself.  And, since the prisoner was now thoroughly anesthetized, he would no longer be able to feel pain.  Finally, the drug that would actually kill him was injected.

On paper this all sounded perfect.  If everything went as planned, the procedure would have most of the positive attributes of the Guillotine.  It was simple, reliable, and effective.  It was not as cheap as a Guillotine but by this time death penalty cases had become quite expensive.  So in that context it was reasonably inexpensive.  And it was carefully designed to avoid the all important yuck factor.  What could possibly go wrong?

And that is somewhat of a mystery to me.  Veterinarians routinely euthanize family pets.  It is important that the pet be treated respectfully and that the procedure be quick, reliable, and apparently painless.  If vets can do this on a daily basis in offices all around the country why can't prison officials do the same?  I have no good answer to this, only a bad one.  The problem is just not that hard to solve.  I would have talked to a bunch of vets to see how they did it.  And I would have duplicated their procedure.  But Oklahoma didn't do that.  Instead they asked Jay Chapman, at the time the Chief Medical Examiner, to come up with what soon became nicknamed the Chapman Protocol.  It is the three drug method I outlined above.

If the right drugs are used it should work just fine.  And Chapman recommended three specific drugs.  And he went with what he knew, drugs intended for use on people by doctors.  That turned out to be a problem.  The drug makers decided that having their drugs used in executions was too yucky so they stopped that from happening.  And so the formula was switched up.  And drugs from sketchy sources were used.  And, cutting to the chase, we ended up with horribly botched executions in Oklahoma and, to a lesser extent, elsewhere.

There is now a game of "hide and seek" going on.  States that want to continue to use lethal injection are seeking drugs to use.  Drug makers, as a result of the yuck factor, are hiding their drugs from  the state officials in charge of executions by denying them the right to buy them.  Oklahoma's latest idea is to bypass the whole "hide and seek" process entirely.  This seems obvious to me.  There are lots of things out there that, in the right circumstances, kill people.  Many of them are not any kind of drug.  They can be bought on the open market without any kind of license or tracking.  And that's where Oklahoma is trying to go.

The key ingredient in the new system we are told is Nitrogen.  Our air is about 80% Nitrogen and Nitrogen is available inexpensively as an industrial commodity.  You can buy a trainload of it, if you want.  Buying smaller quantities is as easy as going to your local industrial supply house and plunking down your money.  What you get is a high pressure cylinder with enough Nitrogen in it to perform several executions.  It's like getting the bottle on your Gas Barbeque filled and costs roughly the same.

The basic idea is simple.  If you move from an 80% Nitrogen and 20% Oxygen atmosphere (normal air) to a 100% Nitrogen and 0% Oxygen atmosphere the prisoner will die.  Again, what could possibly go wrong?  As is the usual case, the devil is in the details.  I included the term "asphyxiation" in the title for this method on purpose.  That's what it is.  The legislator who proposed the method talked about scuba divers having problems as the genesis of his idea.  For another take, check out the movie "Apollo 13".  One of many problems the "Apollo 13" astronauts had to deal with was running out of Oxygen and that's the key idea in this method.  You run the prisoner out of Oxygen.

But there is a possible problem.  The human body has a lot of backup systems in place to avoid death.  Several of them kick in when it detects that the Oxygen level in the bloodstream of the body is getting low.  If the new Oklahoma method involves simply changing up the mixture from 80/20 to 100/0 then the body will figure out something is wrong and start putting up a fight.  This is essentially what happened in the botched Oklahoma execution.  So the simple "remix" solution will not be an improvement over current methods.

Theoretically there is a simple solution.  If you follow the action in "Apollo 13" you will find out that there was a problem that was going to hit well before the Oxygen gave out.  That was Carbon Dioxide (CO2) poisoning.  Air has a small amount of CO2 in it.  The body can handle that.  But if the percentage gets too high the body can't take it.  So one idea would be to leave the Nitrogen component alone and just substitute CO2 for the Oxygen.  This would eventually kill the prisoner.  The problem is that elevated levels of CO2 are not symptom free.  While they do not include acute pain they are not pleasant.  So we are back in yuck land.

There are other options besides CO2.  But we are now into the same place we were before.  There should be easy solutions to this problem as there should have been with the Chapman Protocol.  But in the case of the Chapman Protocol the officials in Oklahoma managed to bungle it.  Both procedures seem to me to be easy to get right.  So if they can bungle one easy procedure they should be able to bungle another.  The fact that the press reports do not mention any third gas when talking about the new procedure is troubling.  It lends credence to my theory that Oklahoma is going to find a way to bungle this new procedure too.

So what's my opinion of the death penalty?  I don't have a strong one.  The thing that puts me mildly into the "pro" category is Ted Bundy.  He was one of the early serial killers of the TV news era and a local boy.  He was an innocuous looking white guy.  That was one reason he was able to go unsuspected for so long.  No one remembered him.  And those that did could not picture him as the kind of guy who could do the truly scary things he actually did.  He didn't seem the type.  But he was.  The authorities finally caught on to him and caught up with him.  Finally, except that it was not, he was arrested in Utah.  He was tried and convicted.  Then he escaped.  He was caught a second time in Florida.  After a series of "only in Florida" events he was convicted and eventually executed.  Neither Utah nor Florida have a reputation for being soft on serial killers.  But both of them had trouble dealing with Bundy.  He's just one of those people the criminal justice system has trouble dealing with.

So Ted Bundy causes me to lean slightly toward a "pro" position on the death penalty.  But I don't think it would be an awful thing if it was abolished.  And the "anti" people have two good arguments.  First, it is used frivolously.  Ted Bundy types are exceedingly rare.  So the death penalty should be used only infrequently and only for special cases.  Texas and some other states substantially over use it.  The second argument is even more serious.  A lot of people who have been executed were innocent.  And a lot of people on death row have been proved innocent.  If you want details, check into The Innocence Project.  The state  should not kill innocent people.  Period.  And unfortunately, the states that seem to like to execute the people the most are the states with the poorest criminal justice systems.  And those criminal justice systems routinely convict the wrong people.

Finally, let me back up and apply some context here.  The state kills a lot of people every year and a very small percentage of these killings are death penalty executions.  Instead the vast majority of them are cases where some law enforcement official shoots and kills some civilian.  We have been barraged by video of these incidents recently.  You can argue the merits of this or that case.  But it is obvious that a lot of people are getting killed and that a lot of those people should not have been killed.

Is there a real and important difference between a cop shooting and killing someone on the street and a death penalty execution?  And make no mistake about it.  Both forms of killing are state sponsored.  The state gives cops the legal right to use deadly force.  In terms of the effect the answer is no.  So this is a case of worrying about a small slice of a larger group and, for the most part, ignoring the much larger slice.  Worrying about a few people getting executed at the end of a long drawn out criminal justice process while not paying much attention to the many others end up just as dead without any kind of due process is a classic example of focusing on the small to avoid thinking about the large.  And that problem characterizes much of what passes for serious discussion in this country at this time.