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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

The banal horror of Arkansas' executions

With the state’s supply of the sedative midazolam due to expire, the proposed schedule came to resemble a lethal clearance sale.

By the opaque reasoning of capital punishment, the state of Arkansas grew some unknowable fraction safer last Monday evening, when Jack Jones, a fifty-two-year-old, overweight, hypertensive, diabetic amputee, was strapped to a gurney in the Cummins Unit prison and administered drugs to successively sedate him, impair his breathing, stop his heart, and kill him. According to the state’s timeline, the process was a model of efficiency, taking only fourteen minutes to complete—less time than one might spend registering a vehicle at the Little Rock D.M.V. This was significant, as the night’s work was just getting started. Arkansas was staging the first double execution in the United States since 2000. Three hours later, Marcel Williams, a forty-six-year-old man who also suffered from diabetes, obesity, and hypertension, was strapped to the same gurney, injected with the same cocktail of drugs, and declared dead within seventeen minutes.

Jones’s and Williams’s executions were the second and third in a four-day period; at the same facility, on the preceding Thursday, Ledell Lee, aged fifty-one, became the first prisoner to be put to death in Arkansas since 2005. A fourth man, Kenneth Williams, aged thirty-eight, who had been on death row since 2000, was executed at Cummins on Thursday, shortly before midnight, when his warrant was set to run out. These four were among eight men whom Arkansas sought to execute in eleven days. With the state’s supply of the sedative midazolam due to expire at the end of the month, the proposed schedule came to resemble a lethal clearance sale. To socioeconomics and race—the known and inescapably arbitrary factors in the application of the death penalty—we may now add a novel dynamic: the shelf life of benzodiazepine compounds. There is a banal horror in the bureaucratic diligence that noted the drug’s expiration date, calculated how many people might be killed before it passed, and generated the warrants that Asa Hutchinson, the state’s Republican governor, signed.

McKesson Medical-Surgical, Inc., which distributes vecuronium bromide—a drug that is commonly used during surgery but that can also be used to stop a person’s breathing—filed suit against Arkansas, claiming that it had been duped into providing an ingredient of the cocktail. Four of the executions were blocked by court order. The Eighth Amendment prohibition against “cruel and unusual” punishment served as a measure of the elastic morality that facilitates the death penalty: does it constitute cruelty to infuse the condemned with a sedative, rather than a stronger anesthetic, particularly if, as attorneys for Jones and Williams argued, the circulatory conditions of the men might impair its effectiveness?

The rush of executions is notable not only for its barbarism but also for its contrast to prevailing thinking about capital punishment. Support for the death penalty peaked in 1994, with eighty per cent of Americans in favor. Last year, a Pew study found that the number had fallen to forty-nine per cent—the first time since 1971 that less than half of the public supported it. The declining crime rate accounts for part of the drop: in the mid-nineties, murders were twice as common as they are now. At the same time, the idea that death serves as a deterrent to other criminals has been consistently unsupported by evidence. Data from the Death Penalty Information Center show that, in the past forty years, there have been eleven hundred and eighty-four executions in the South, compared with four in the Northeast, yet homicide figures in 2015 were nearly seventy per cent higher in Southern states than in Northeastern ones. The death penalty is about retribution for past offenses, not prevention of future ones.

There is also a growing awareness that it is perhaps impossible to create a justice system that both executes criminals and avoids killing innocents. The sclerotic appeals process insures that years, if not decades, will pass before the condemned meet their state-authored fate. But streamlining the process only increases the likelihood that innocent people will die. Since 1973, a hundred and fifty-eight inmates on death row have been exonerated of the crimes for which they were sent there.

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Source: The New Yorker, Jelani Cobb, May 8, 2017 Issue

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