Ethics

The (New?) Aesthetics of Execution (Madeira)

By Jody Madeira

In Baze v. Rees, decided on April 16, 2008, the U.S. Supreme Court took up the gauntlet of lethal injection, considering whether Kentucky?s three-drug lethal injection method posed an unacceptable risk of significant pain.  The court, however, was concerned not only with the Eighth Amendment proscription against the wanton infliction of pain during execution but the visibility of the condemned?s suffering?the aesthetics of execution. What is at stake, then, is not only pain, but its politics and propriety, which come into play when pain becomes palpable through displays of human suffering.  According to the majority, one of the advantages of Kentucky?s lethal injection cocktail is that it promotes death with dignity.  That state?s current lethal injection protocol consists of sodium thiopental, which induces unconsciousness; pancuronium bromide, a neuromuscular paralytic agent that ceases diaphragm movement; and potassium chloride, which induces cardiac arrest. Pancuronium also has other side effects advantageous in the production of sterile and serene execution scenes; it prevents involuntary bodily movements made by an unconscious offender prior to the injection of the third drug.  The majority opinion acknowledges this benefit, stating that ?the Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.?  A lack of dignity does not come from pain itself, for pain is inevitable in execution; instead, it stems from the sight of a body in pain?for with such struggles comes the awareness of another?s suffering.  In their concurring opinions, other justices also recognize the political import of painful displays.  Justice Stevens takes the majority to task for allowing a state to prioritize decorum over compassion by using pancuronium to mask displays of suffering that could indicate that a condemned offender is still conscious:  ?[w]hatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.?  Scalia, on the other hand, treats pain and its ensuing indignities as essential to the act of execution, stating that a truly retributive punishment must inflict pain ?commensurate with the pain that the criminal has caused.?  This is, of course, the quintessential problem that many murder victims? families have with the death penalty?that it offers viewers no glimpse into the aesthetics of suffering.  The majority decision supports that state?s right to ensure that the condemned appears to pass peacefully, while Justices Stevens and Scalia both plead for pain?s presence, albeit for very different reasons.  Baze might raise more questions than it answers, but its rhetoric not only acknowledges that pain is crucial to execution as a symbolic act, but sheds light on how the members of the high court regard the proprieties of pain.

Full post as published by Neuroethics and Law on April 17, 2008 (boomark / email).