An honest list of execution devices and methods would include the electric chair, the gas chamber, and the guillotine, but also the brazen bull, drawing and quartering, and suffocation by elephant. The latter were devised to maximize the anguish of the victim, and to elevate the experience of onlookers to the level of sublime spectacle. Edmund Burke had some decades before the French Revolution speculated that typical European theatergoers, in the middle of a gripping tragedy, would, upon hearing of a public execution taking place outside, immediately abandon their tragedians to get a glimpse of the real thing. Human beings are gawkers, particularly at the suffering of others. And yet just as Burke was writing, a transformation was taking place in the way capital punishment was carried out in Europe: It migrated from public squares to prisons, out of sight of ordinary citizens. This migration was part of a broader shift in society’s tolerance for open cruelty; the same era also saw the retreat of animal butchery from open-air markets to the closed space of the abattoir.
Discretion suits our need to think of ourselves as having overcome the cruelty of our ancestors. Yet it is also in tension with the ideal of transparency. Among the few liberal democracies that still make use of the death penalty, there is a basic and likely irresolvable conflict between the modern rejection of death as spectacle and the equally modern imperative for popular oversight of the things a state does in the name of its citizens.
We are witnessing a resurgence of forms of violence that strike us as terribly unmodern, such as ceremonialized beheadings and stonings, often for crimes that can count as crimes only to the extent that a closed community works itself into a fuss about them: apostasy, adultery, and so on. There has also, of course, been an apparent resurgence of nonstate political violence targeting civilians over the past few decades — “terrorism,” we call it, in unconscious allusion to the revolutionary bloodshed in France in the wake of 1789.
There is a basic conflict between the modern rejection of death as spectacle and the imperative for popular oversight of the things a state does in the name of its citizens.
The two forms of violence — state and nonstate, capital punishment and terrorism — are linked, and fear of the latter has been consistently manipulated to strengthen the former. In the United States, use of the death penalty as a regular tool for the punishment of despicable crimes appears to have reached a point of crisis, and yet the specter of terrorism nearly ensures that capital punishment will not disappear. In this, America continues to straddle a significant boundary between the liberal democracies of Europe and the sundry authoritarian regimes throughout the world that reject the European conceit of abolishing the death penalty as a marker of decency, of respectability, or, in a word, of modernity.
It is instructive to consider the fate of the death penalty in Europe, from the guillotine to eventual total abolition over the past several decades, although in doing so we must be careful not to assume that Europe’s history is the world’s destiny. At the time of the French Revolution, capital punishment was not only compatible with the ideals of the Enlightenment, but, with the innovation of the guillotine, provided an icon of the abstract values of reason and equality at the core of the era’s transformations.
Joseph-Ignace Guillotin had proposed his machine as a remedy to the problem of suffering; only benighted and barbarous regimes seek to torture the condemned, while enlightened regimes are interested only in eliminating them to heal a social ill. Though by 1794 the Terror had swallowed up many scientific luminaries, the guillotine came to be seen as an instrument of scientific measurement, at once of the health of society and of the physiology of death. There was a flurry of experiments and speculations on lingering consciousness in severed heads, stories of which were compiled in the 1796 brochure “Anecdotes sur les décapités.” Science could lose no opportunity for its own advancement.
The contradictions of the death penalty in the modern era were already in full evidence even before the end of the French Revolution. A relatively minor change in the method of execution was supposed, somehow, to completely alter the moral significance, political valence, even the scientific utility of killing human beings.
By 1977, the time of France’s final execution before abolition, the guillotine had lost its luster, and had turned into a source of shame. Until his retirement, in 1981, when capital punishment was outlawed, France employed a single state executioner, a functionary named Marcel Chevalier. He was married to the daughter of the previous state executioner, and at the moment of the abolition of the death penalty his son was in training to succeed him. (Revolutions generate their own inheritance structures.) Chevalier was last called to duty for the beheading of Hamida Djandoubi, a 28-year-old Tunisian immigrant, on September 10, 1977. Djandoubi had murdered his former French girlfriend three years earlier. He was the sort of criminal who would easily have found his way to an electric chair in America.
Remarkable testimony of his death was given by Monique Mabelly, at the time the chief examining magistrate of Marseille, who was obligated, in view of her position, to bear witness to the execution. She took notes on what she saw, which were published in Le Monde in 2013, a year after her death. Mabelly relates surprisingly significant details, as when the executioner takes off Djandoubi’s handcuffs in order to replace them with a cord, and exclaims in joking reassurance, “You see, you’re free!” She describes how the condemned man desperately stalls for time, like a child who does not want to go to bed. She recalls turning away just before the blade comes down, not for fear of “losing it,” “but out of a sort of instinctive, visceral shame (I do not find another word).” And she describes what happened next:
I hear a dull sound. I look again — there is blood, a lot of blood, very red blood — the body has tumbled into the basket. In one second a life has been cut off. The man who spoke less than one minute before is now nothing more than a blue pair of pajamas in a basket. A guard takes up a spray hose. One must quickly remove the traces of a crime. … I have a sort of nausea, which I control. I have in me a cold revulsion.
The United States has gone through several machines meant to sanitize the death penalty. Changes in method typically follow some technological innovation.
The guillotine, born of Enlightenment optimism, ends in nausea and shame. France had remained with this instrument throughout the 187 years of the death penalty’s post-Revolutionary application. The United States, by contrast, has gone through several machines meant to modernize and sanitize the death penalty. Changes in method typically follow some technological innovation. Thus the electric chair was developed largely by employees of Thomas Edison, in the context of the inventor’s “war of currents” against George Westinghouse. (Edison preferred DC to Westinghouse’s AC.) The guillotine and the noose and the firing squad would come to appear backward and brutal, and in time lethal injection would in turn cause the electric chair to seem similarly antiquated. And now lethal injection is threatened, with state-prison officials struggling to procure effective cocktails of poison and to find people competent enough to administer them and willing to do so.
Have we now seen enough of this lurching from one method to another to finally understand that every new method will pass through exactly the same cycle as its ancestors, and, like them, will finish in shame?
In Europe the decline of the death penalty had much to do with the trauma of World War II, and with pressure to conform to standards that might help ensure that nothing similar ever happens again. That the death penalty was seen as having anything at all in common with the Nazi genocide required a shift in the political culture from the idea, still widespread in America, that it is individual criminals being executed for their individual crimes, to the idea that the death penalty is often applied in a way that unfairly targets a particular group of people. The last man executed in France was a Tunisian immigrant; 16 years earlier, in 1961, somewhere between 40 and 200 North Africans, mostly Algerian, were massacred by the Paris police in response to a peaceful demonstration against the Algerian war. There is no direct link, of course, but the fact remains that whether the victim is a political demonstrator or a convicted murderer, in both cases the state is dealing with members of a marginalized and often despised minority by means of violence.
It is clear that the disproportionate application of the death penalty to persecuted communities is the norm throughout the world. Eight people were executed on one day in April in Indonesia. Four of the victims were African, and all but two were foreign nationals who lacked understanding of the legal system or means of real legal assistance. Saudi Arabia demonstrates similarly disproportionate severity toward foreigners.
China openly deploys execution as a political tool to quell ethnic unrest, particularly among the Muslim Uighurs. In the United States death rows are disproportionately populated by African-Americans. The disproportion is relative both to their portion of the total population as well as to the population of murderers. The sort of trial in which a death penalty is most likely is one in which a black defendant stands accused of murdering a white victim. As of April, 41.67 percent of death-row inmates were black and 42.77 percent white, while black Americans make up roughly 12.2 percent of the total population.
Death row reflects the great racial disparities of the American carceral system as a whole. Jason Stanley and Vesla Weaver, scholars at Yale University, offer a thought experiment to drive home the scale of the imbalance: If black America were an independent country, and the current level of imprisonment of black Americans matched the international average, that country would have to have a population of more than 600 million. It is figures such as those that lead some, such as the Berkeley sociologist Loïc Wacquant, to conclude that America is not a society with prisons but a “prison society,” and that this role must be understood in continuity with the institution of slavery that preceded it.
The prison-industrial complex, and its role in preserving racial inequality in the United States, shows no signs of decline. And yet capital punishment seems, by some measures, to be in decline. The legitimacy of the practice is being chipped away, bit by bit, and the contradictions are being heightened to the point of absurdity.
The principal challenge has been the argument that a particular method of execution is cruel and unusual. So states are kept in perpetual quest of the impossible: a method that can be plausibly passed off as humane. That pressure has compelled prison officials to reproduce the very behavior of the drug users they are in the habit of imprisoning. Citing the investigative work of the journalist Katie Fretland, Jeffrey E. Stern reported in The Atlantic recently that prison officials in Oklahoma had been forced, as a result of the discontinued supply of sodium thiopental, the only officially approved chemical for the job, to charge their employees with finding alternative concoctions, often by back-channel means. A new drug, pentobarbital, was paid for out of a petty-cash fund with no public oversight. Officials joked by email with their counterparts in Texas, calling themselves “Team Pentobarbital” and offering to help score this new drug in exchange for a thrown football game between college teams in Texas and Oklahoma. With state officials lurking around with bags of untraceable cash to buy lethal compounds from shady online operators in Britain, India, and Angola, it’s no surprise that the Drug Enforcement Administration has begun raiding prisons to crack down on their importation of illegal drugs.
This most recent phase of the American death penalty looks like a large-scale version of one of the many botched executions in recent years: obscene, contradictory, impossible to sustain. Many would say that this is the system working as it should. The United States is moving toward international norms — the ones set by liberal democracies, not by the explicitly postdemocratic states in which the death penalty shows no signs of decline — and is doing so not out of an aspiration to be more like any other society, but simply by allowing the internal rationality of its laws to take its course.
When it comes to capital punishment, the U.S. government adheres to international norms recognized and valued principally by its declared enemies.
Still, more will die. After the recent suspension of the death penalty by the Nebraska legislature, the governor insisted that the legislature did not have the power to reduce court-ordered punishments, and has accordingly promised that the sentences of the 10 prisoners on death row will be carried out. It is not clear whether he has the chemicals to follow through on that threat, or, if he does, whether they would be legal to use.
In June the U.S. Supreme Court decided in a 5-to-4 vote that midazolam, a sedative involved in three botched executions last year, does not violate the Eighth Amendment’s ban on cruel and unusual punishment. The decision was a significant setback for death-penalty abolition, but the case concerned only the narrow matter of the effects of midazolam. In a dissent, Justices Stephen G. Breyer and Ruth Bader Ginsburg suggested that the death penalty itself is unconstitutional. We can expect more challenges.
Despite the court’s decision, it’s clear that capital punishment is in crisis, and we may ask why this is happening now. Is America unconsciously distancing itself from the world’s despotic regimes and realigning itself with liberal democracies? It is significant that much of the pressure, and much of the research that uncovered the seedy trails by which prison officials had begun procuring drugs, has come from human-rights groups, such as the British-based Reprieve. Or could recent developments have more to do with the long and complicated tension between concealment and spectacle in modern punishment? Some states that practice capital punishment do so in a way that is brutal and transparent at once: Both Iran and Saudi Arabia routinely stage public executions. There is nothing to hide; on the contrary, the power of the state is reinforced by the shared public experience of killing citizens. Other countries, such as China, carry out death sentences behind prison walls, allowing the lesson of state power to filter out by rumor and speculation.
In America there has long been a curious hybrid of the two approaches. We deem execution to belong to the old, barbarous world. When death-row inmates in Utah have on occasion attempted to avail themselves of the right to a firing squad, they are intentionally and strategically attempting to turn their own sentences into spectacle, and in that way to make their deaths unacceptable in the eyes of the squeamish American public.
To my own astonishment, there are journalists who, as part of their job, attend executions. They are witnessing and testifying, of course, and that is important. Yet it has often seemed to me that they are also abetting. Like the attending spiritual advisers, they are playing their role in a ritual, and like any ritual, the fact that people show up to fill even secondary roles creates an ambiance of legitimacy. Transparency and spectacle are not so easy to pry apart. Spectating and bearing witness are related modes of attention.
In the months before the execution of the Oklahoma City bomber, Timothy McVeigh, there were calls for the event to be broadcast on television, perhaps pay-per-view. The eventual compromise was for it to be broadcast, by closed-circuit television, only to the loved ones of the dead. In the United States as in Iran, although executions have migrated behind prison walls and away from town squares, they have not entirely lost their air of spectacle.
Will the death of Dzhokhar Tsarnaev, the Boston Marathon bomber, be watchable online? The use of the death penalty for political crimes, as opposed to those committed out of ordinary criminality, is both exceptional and representative. The public opinion that leads to the imposition of the death penalty in political cases influences the fates of “ordinary” criminals, too. After a moratorium, the death penalty was recently revived in Pakistan in response to the 2014 Islamist murders at a school in Peshawar. Soon enough, common criminals who might previously have expected to live out their lives in prison were being hanged, including members of persecuted minority groups, such as Aftab Bahadur, a 38-year-old Christian who had been found guilty of murder when he was 15.
In Nigeria, following the horrific violence of Boko Haram, 659 people were sentenced to death in 2014, up from 141 the year before. In postrevolution Egypt, 509 death sentences were handed down in 2014, up from 109 the year before. Men who killed out of passion, desperation, mental illness, or moral turpitude have had their fates decided as much by geopolitics and ideology as by the rule of law. If Tsarnaev is killed, it will be in the name of toughness on terrorism, yet it may also breathe new life into an otherwise moribund practice.
In Tsarnaev’s ancestral homeland, Chechnya, extrajudicial capital punishment, as well as torture and imprisonment, is practiced with impunity. It is taken for granted that the state, as embodied in the warlord Ramzan Kadyrov, has power over the lives and deaths of its citizens. It is thus not surprising that Kadyrov, as well as Tsarnaev’s mother, denounced the trial as a setup by the American government. In Chechnya it is simply assumed that the death penalty is always political.
That perspective, however heavy with the contradictions of conspiracy theory, gets at a truth about Tsarnaev’s case that many Americans miss. It was said at the time of the attack that what we had witnessed at the marathon’s finish line in Boston was not so much another September 11 as “Beslan meets Columbine,” referring to both the 2004 Islamist siege of a school in Beslan, North Ossetia, and the 1999 siege by two teenagers of a high school in Colorado. The former case is supposed to be unambiguously political, the other a symptom of social pathology. The Tsarnaev brothers were able to hybridize the two species of violence because of their status as both “typical American boys” and immigrants from a region known to produce Islamist terrorists.
To make Tsarnaev’s crime worthy of a death sentence, the prosecution emphasized the political dimension of it. And an important element of the politicization of Tsarnaev’s deeds has been the racialization of his person.
The irony was lost on most Americans that an actual Caucasian was on trial in the United States for murder, while the success of the prosecution’s strategy hinged on portraying the defendant as something other than Caucasian, in the strange sense in which that term is used in American racial discourse. It had to be shown that Tsarnaev was, in some way or other, brown. For him to be brown, in the way that was sought, meant imbuing him with the sort of soul whose violence is a species of terror. True, in the bloody note that he scrawled during the manhunt, Tsarnaev speaks of martyrdom, and of his victims as “collateral damage” comparable to Muslims killed in Iraq and Afghanistan. But in their own scribblings, the Columbine killers spoke of Timothy McVeigh, of Waco, of Vietnam. The personal is political, as has been noted in other contexts. History flows through lost boys.
The crimes for which Tsarnaev was sentenced were committed in Massachusetts, a state that repealed the death penalty in 1984. But he was tried on federal charges and is expected to meet his end in the same place McVeigh met his, the U.S. Penitentiary in Terre Haute, Ind.
The death penalty may be sputtering out at the state level, but it can still be imposed from above. When it comes to capital punishment, the U.S. government adheres to international norms recognized and valued principally by its declared enemies. America stands with the warlords, whose reigns depend on the regular demonstration of power over life and death.
