The Undying Problem Of The Death Penalty

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If the mental-pain view prevails, no form of execution can ever pass constitutional muster. After all, even lethal injection, supposedly the most painless method, still involves the “long wait” following conviction while the legal process tries to ensure that death, the one punishment not subject to revision, comes only to the truly guilty. And electrocution, whose supposed absence of pain so attracted the Victorians, has turned out to hold its own horrors. Lewis E. Lawes, for many years the warden at Sing Sing Prison, had this to say about what happens in the electric chair: “The [prisoner] leaps as if to break the strong leather Straps that hold [him]. Sometimes a thin wisp of smoke pushes itself out from under the helmet that holds the head electrode, followed by a faint odor of burning flesh. [The body heats to 130 degrees—a little less than rare roast beef.] The hands turn red, then white, and the cords of the neck stand out like steel bands.”

The newspaper account of Storti’s death omitted some of the details, but the reporter had certainly seen the same sights that Warden Lawes had: “The body of Storti surged up against the tightly buckled straps, which creaked and strained under the pressure, the veins in his neck and wrists and face swelled.” Afterward, the reporter wrote, “none of the other witnesses would say anything of particular interest about the execution, except that nothing could be more sudden or certain in producing death than electricity as it is applied in the prison.”

Deliberately using the power of the state to take a human life continues to raise moral and political issues that legislators find uncomfortable to face and judges find impossible to solve. Whether today’s out-of-sight executions more effectively deter crime than did the public spectacles of hangings in earlier times is not the only question. Over the last twenty years society has become more willing to recognize the interests of victims or (in cases of murder) their families in the punishment process. Elected local prosecutors, when deciding, for example, to explore the possibility of a plea to second-degree murder or rhanslaughter, pay careful attention to the survivors’ desires. Beyond that, at sentencing time, even when the judge has no discretion, many states give family representatives the right to vent their feelings in open court.

In short, although revenge may indeed be a kind of wild justice, we are now coming to think that perhaps the law needs not to root it out but to regulate it. Whether that regulation should involve the latter-day gallows tree is a question that is anything but new, yet that remains and will remain for all of us to ponder and—however we can—answer.