Why are Capital punishment methods so difficult to institute?

Question

I have found it perplexing to understand that states employing Capital Punishment often struggle to craft a method of execution that is effective, reliable and procurable.

Historically I believe that hanging, firing squad and electrocution are generally regarded as cruel and crude.

Lethal injection however seems to be complicated by the procedure and substances used. However there are lots of alternatives to the specific three substance used.

Why not have an anesthetic, a sedative or an opiate?

Why not use asphyxiation via carbon-monoxide or a paced reduction of oxygen?

I’m not trying to experiment on killing people. I just would like to understand why the methods seem limited.

Answer 1

Let's skip morality for a second.

First, US law - I tagged this question as USA because few other developed countries have this issue, besides Japan - forbids cruel and unusual punishment. So the execution needs to happen under as un-painful, un-stressful conditions as possible (if you think any execution is cruel ... that's not the point). This started being a problem when at least one person had to be repeatedly injected and showed signs of distress. Since the scrutiny started, this has been seen again on several occasions. So at least some of the current methods are open to legal criticism from the cruelty angle.

Second, the people doing the job may not be thrilled. From doctors and medical personnel (who may not be allowed to participate at all, see comments) to just people pulling triggers or power switches. So even something as "simple" as arranging someone who really knows how to administrate intravenous shots may be problematic if licensed medical personnel is not allowed to do it (and could lose their license in some circumstances). ref, ref, wiki re. participation medical personnel:

In 2010, the American Board of Anesthesiologists, a member board of the American Board of Medical Specialties, voted to revoke the certification of anesthesiologists who participate in executing a prisoner by lethal injection.

Third, the drug manufacturers sell very little volume of their products for this purpose but face massive PR backlash. Simplest solution is to just stop selling it for that purpose and expressly forbid their use for it. Very free market, hard to oppose from the PoV of someone opposing government overreach.

Fourth, regardless of whether it could legally be considered cruel and unusual, things that remind people too much of how barbaric capital executions are, are out: no guillotines, beheadings, etc... Optics are everything: you want something sterile, medical, scientific. Not something out of the Dark Ages or reminding too much of nasty regimes elsewhere. Wouldn't want to alienate your supporters. (note: it's not that guillotines are inhumane by the metrics of this subject - they're probably pretty darn good on speed, pain and ease of operation - they just look bad and remind death penalty supporters of exactly what they are supporting).

Fifth, opiates. Fentanyl is lethal, painless and presumably thoroughly enjoyable at the time. But the people most baying for the death penalty are also very opposed to recreational drugs. Probably sets off all sorts of cognitive dissonance. Plus, see comment below, they may not work that well either (I find this statement, all of 5 sec long, part of a comedy/news show very unconvincing about their effectiveness or not, at least with trained personnel. Links to better sources welcomed.). (as of 2019): Not used federally, on hold pending legal challenges in Nevada, used once in Nebraska, in combination:

There’s no particular reason why one would use fentanyl. No one has used it before, and we’ve had hundreds and hundreds of executions by injection. That suggests that the state is using fentanyl because it can get its hands on it.

• Robert Dunham, Death Penalty Information Center

Scott R. Frakes, the director of Nebraska’s Department of Correctional Services, admitted to this in an affidavit: “Lethal substances used in a lethal injection execution are difficult, if nearly impossible, to obtain.” Like the federal government, states are struggling to find companies that will sell them drugs for executions. In Ohio, the problem is so serious that lawmakers began debating last month whether their state should carry out executions with fentanyl confiscated from drug traffickers by the police.

Sixth the death penalty is not all that popular, not least because miscarriages of justice where innocent people are convicted have been known to happen (quite a bit), though not necessarily in capital punishment cases. So, to circle back to the question's core, there's a limited appetite for just "fixing the problem" and quite a bit of "arguing on technicalities".

"Requires no limited resources, guaranteed painless, looks inoffensive" - pick any 2 seems to be the dilemma. Although, to be honest, the electric chair, as answered here, competently-operated, might fit the bill.

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p.s. The US death penalty is definitely a moving target. The US did not carry out any executions from 1966-1976, according to The Executioner's Song (book by N. Mailer). Then it came back, went up (peak 1999: 98), is now going down (2020: 17). Scrutiny about execution procedures is relatively new and is not far predated by systematic investigations of wrongful convictions in the US justice system. These are all items that have surfaced in the last 20 years or so. Pew Research makes some good reading, as usual.

Answer 2

Morality isn't math, it's the sense of the people. Different people consider different things as moral and immoral. Therefore, cruelty is also not a "true vs false" concept, it's measured according to the mindset/culture/morals of the people of the concerning community and generation.

In a generation that so many people are against capital punishment even for the worst of criminals, finding an execution method which will be considered humane, uncruel and protecting human dignity, by the majority of people of developed countries, is almost impossible. That is, people who consider capital punishment as cruel in it's essence, would have zero tolerance for involved pain, blood, body deformation, change of even skin tone or the execution being a long process, and will certainly try to ban it through the judicial system, citing centuries old laws against cruel execution.

Maybe the new Swiss "Sarco Pod" - painless suicide device, wouldn't be challenged in court - for the use of capital punishment, in our generation. (if the company will agree to cooperate).

Answer 3

While I am normally opposed to the existence of the death penalty (because the possibility of executing a wrongly-convicted person is beyond unacceptable), I have mixed feelings.

First, if we're gonna have and use the death penalty, we must not confuse an execution with a medical procedure. The justly condemned should have no say about the manner of their dying, as long as there is no unnecessary or unconstitutional cruelty or suffering since they gave their victims no say in their manner of dying.

And lethal injection is a terrible method meant to project an image of a "kinder, gentler execution" while, at the same time, inflicting all sorts of unnecessary suffering on the condemned even when it works "well". We had previously have the capability of inflicting instantaneous loss of consciousness, nearly instantaneous loss of brain and organ function, and certain death. And it will look like an execution.

Death by electrocution has recently been given a bad rap, but that is probably the most humane, efficient, and least bloody method, if it's done correctly and there is no good reason it cannot be done correctly. The botched electrocutions happened only because of extreme and inexcusable incompetence. For a reference of competently carried out electrocutions, you should look at the state of Tennessee. A modern designed and constructed chair and components, including electrodes for each leg effectively nearly doubling the current that flows through the head, brain, brainstem, and spinal cord.

No needles to poke. No suffocation with lethal gas. Within 1/120th second after the switch is thrown, there is total loss of consciousness. Within 1 second there is grave and irreversible damage to the amygdala and brainstem. Within a half minute grave and irreversible damage to the heart and other vital organs, especially with the two leg electrode method.

Death is certain, immediate, physically painless, and no one will confuse the execution with a medical procedure. There is no involvement of the medical profession except in the pronouncement of death. It might not be bloodless as demonstrated in Florida in 1999. But that is no indication of pain.

Answer 4

Some people aren't happy with "just" killing a convict. They want it to hurt, or to have added deterrent value by being ugly.

Others think that it's just about acceptable for the most heinous of crimes, provide its as painless as possible.

Hence, argument to prevent any change to the status quo (from one method of execution to another).

Try suggesting that the condemned be allowed to choose his method of execution from a list of practical methods, including anoxia (breathing an inert gas) which is known to be painless. And wait for the objections based on a direct or concealed (or cognitively dissonant) "its too easy on them".

For the record: I'm opposed to the death penalty because anybody not opposed to it, becomes complicit in a state-sanctioned murder when an innocent man is executed. This has happened many times in the past and there's no reason to think it won't happen many times in the future. Human justice is fallible and a death penalty cannot be reversed when new evidence comes to light. Any execution of an innocent is surely "cruel and unusual" to that person.

Answer 5

I feel this Q is rather broad and mixing medical/technical with social/political issues. But regarding opiates, although there are documented quick deaths from them, they are also a bit unpredictable. It can take days for some to die from an overdose, after falling into a comma. And this was even in a case of intended death, i.e. [medically] "assisted suicide". I suppose that somewhat conflicts with the idea of an execution being set for day D, hour H, when people are watching from a little gallery, etc.

Likewise, use of only anesthesia agents is equivalent to a medically induced coma, so death may not be quick. Possibly for this reason, when it came for a judge to decide between such a method and a more complicated one that administers additional paralytic agents, they opted for the latter, despite the risks that it may not be painless, if anesthesia was incomplete. (First source in previous para discusses how paralytic agents can give post-mortem autopsy results that suggest lungs fill with fluid, like in a drowning, citing this for details.)

Regarding carbon monoxide, I'm not sure what the objections are [it's seldom discussed], but I suspect that (a) it being also used by the Nazis at one point [at least HCN is discussed in those terms] and (b) it's an odorless poisonous gas, so if it escapes into the audience room/gallery, it'll possibly poison more people than intended that day, even if they might not die. (There are cases of people dying days after exposure to excessive CO, even if they recovered in the meantime, or developing brain injury even if having no symptoms initially, so that's probably a [legal] risk worth considering, i.e. the state getting sued by someone in the audience etc.) Possibly for reasons like this Oklahoma and Alabama approved execution by pure nitrogen atmosphere as the latest innovation. That's not so likely to poison the audience in case of a bad seal. As it turns out, the whitepaper that was instrumental in getting this nitrogen method approved does touch on these points...

The likelihood of mishaps must also be considered, as well as the consequences that would flow if those mishaps should occur. Because the protocol involved in nitrogen induced hypoxia is so simple, mistakes are unlikely to occur. Oxygen and nitrogen monitors may be placed inside the contained environment to insure the proper mixes of gas are being expelled into the bag and inhaled by the subject. However, the protocol should be careful to prevent the possibility of oxygen entering into the hood, as that can prolong time to unconsciousness and death, as well as increase the possibility of involuntary movements by the subject. The risks to witnesses are minimal, as any potential leak of the nitrogen would not be harmful in a normally ventilated environment.