One more thought on methods of execution
posted by Alice Ristroph
Medellin v. Texas is the recently decided case involving a Mexican national on death row in Texas and a dispute about when the international commitments of the country as a whole bind individual states within it. In particular, one of the key questions was whether a decision by the International Court of Justice was “self-executing,” or if instead further Congressional action would be required to impose obligations on the state of Texas. (The U.S. Supreme Court decided that the ICJ judgment was not self-executing.) After the Court announced its opinion, a colleague said to me, “Of course, none of this would be a problem if we only had self-executing prisoners.”
Gallows humor, literally. Interestingly, though, self-executing prisoners are not entirely unknown to history. As made famous by Socrates, hemlock was a standard method of execution for a time in ancient Athens: the condemned would be presented with a cup of hemlock and “persuaded” to drink it. Hemlock stands in stark contrast to the other methods of execution reported in Danielle Allen’s study of Athenian punishment: stoning, death by sword, and a form of suffocation or crucifixion in which the prisoner was attached to a board by iron collars. Unlike these gruesome and starkly physical punishments, hemlock seemed to preserve the bodily integrity of the citizen and avoided bloodspilling. It may have also been attractive as a means to preserve at least the image of consent: the executioners and other Athenians could claim that the condemned person consented to be punished.
Now, it’s plausible that the historical Socrates actually consented to self-execution. (He was 70 years old, and by some accounts had something of a death-wish.) But the limited available evidence suggests that most Athenians who swallowed hemlock did so only to avoid a more painful and bloody alternative. And no one pretends that Texas could solve a problem like Medellin just by offering him a lethal cocktail instead of strapping him down and injecting him with one. (I say a little more about Socrates and hemlock, and a lot more about the nonconsensual nature of punishment, in Respect and Resistance in Punishment Theory.)
In contemporary discussions of the death penalty, some seem to believe that it is especially important that the state kill the prisoner rather than the prisoner kill himself (or die of natural causes–thanks to Doug Berman for this link). When Gary Gilmore was on death row in Utah, he overdosed on drugs that his girlfriend had smuggled into the prison. State officials rushed him to the hospital, pumped his stomach, and only later—once he’d been brought back to health—executed him.
Allen’s book reports that those who introduced hemlock to Athens also moved executions out of the public view and behind prison doors. Not only was no blood spilled, but the public couldn’t witness any bullying that was required to make the prisoner “consent” to poison himself. Hemlock, possibly the first effort to introduce a humane method of execution, appears to have been part of a broader campaign to make punishment more palatable by disguising it and removing it from public scrutiny.
All of this makes me wonder if there aren’t some complicated political side effects to campaigns to ensure humane methods of execution. It’s been argued, and not just by me, that special legal procedures in capital trials might actually entrench support for capital punishment by giving it the appearance of orderliness, predictability, and rationality. Might a new jurisprudence of execution methods do the same thing?
Of course, opponents to the death penalty are usually pursuing many different goals. It’s rational to hope that the death penalty is abolished, and at the same time to try to ensure that as long as capital punishment is legal, it take place in the most humane way possible. But it’s worth noticing that success on one front might undermine progress on the other.
April 28, 2008 at 6:10 pm
Posted in: Constitutional Law, Criminal Law
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shg - April 29, 2008 at 6:23 am
A little nit to pick. It isn’t the decision of the ICJ that is “self-executing,” but the treaty that binds the US to comply with the decision that must be self-executing, rather than require the Senate to approve its execution.
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