Pain is characterized by its “unsharability, and it ensures this unsharability through its resistance to language.”
Last week a South Carolina trial judge heard testimony in a case challenging that state’s plan to use the electric chair or the firing squad to carry out executions. The suit brought by four of the state’s thirty-five death row inmates alleges that both methods violate the state constitution’s prohibition of cruel, corporal, or unusual punishment.
In the background of the South Carolina case is this country’s ongoing lethal injection crisis. The state brought back the electric chair and the firing squad only after it was not able to secure the drugs need for lethal injection executions. It is one of eight states that now authorize electrocution and one of four states where the firing squad is legal.
Prior court decisions have given states great latitude in choosing their execution methods, making it unlikely that the plaintiffs will prevail in the South Carolina case. The cruelty of that result will be considerable.
As the case unfolded last week, it turned into a familiar contest of experts, each of whom testified about the pain associated with death by electrocution or by gun shot. It highlighted the lengths to which death penalty states will go to carry out executions, as well as the extraordinary difficulties judges face when they are asked to determine the pain that any execution method causes.
Methods of execution challenges are now a regular part of the arsenal of death penalty defense lawyers. Yet those lawyers are seldom able to convince judges to permanently strike down any particular execution method.
In fact, at the federal level, the Supreme Court has never found a method of execution to be constitutionally impermissible. More than a century ago, it approved the use of both the firing squad and of the electric chair.
Here are those histories. First, the firing squad.
In 1877, Wallace Wilkerson was convicted of murder and sentenced to death. The state of Utah offered him a choice of being decapitated, hanged, or shot. He chose the last of the three. But Wilkerson had a change of heart about the firing squad and soon sued to stop his execution.
Two years later, the Supreme Court found that “the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category within the meaning of the Eighth Amendment.” It held that the Amendment prohibited only what it called “other circumstances of terror, pain, or disgrace” and punishments “where the prisoner was drawn or dragged to the place of execution…; or where he was emboweled alive, beheaded, and quartered….”
One can take some comfort that the Court found it a step too far to permit the disemboweling of a convicted person, I suppose, but it is striking that it limited the Eighth Amendment’s protections only to such forms of torturous death.
In 1890, the Court considered William Kemmler’s challenge to New York’s plan to use its newly developed electric chair to put him to death. It noted, in what would foreshadow the future course of methods of execution litigation, the role of expert opinion in Kemmler’s case. The Court remarked in passing, “A voluminous mass of evidence was then taken as to the effect of electricity as an agent of death.”
It went on to say that “Punishments are cruel when they involve torture or a lingering death…” and that a punishment is cruel if “there something inhuman and barbarous, something more than the mere extinguishment of life.”
The Court agreed with the findings of the lower courts that “application of electricity to the vital parts of the human body, under such conditions and in the manner contemplated by the statute, must result in instantaneous, and consequently in painless, death.”
It concluded that electrocution was not cruel.
Unsurprisingly, in last week’s South Carolina trial, each side called its own experts to offer opinions about how painful death by electrocution or the firing squad would be.
According to a report in the Greenville News, “The witnesses gave varying opinions on how electricity affects the brain, heart, and skin of someone who is executed in an electric chair and debated how quickly someone may lose consciousness when shot directly in the heart by a firing squad.”
In firing squad executions, Dr. Jonathan Arden, the former chief medical examiner for Washington, D.C., told the court, “bullets have to break through soft tissue and bones to reach the heart, where sharpshooters are aiming…. If someone were to be shot like that and then have a brief period of consciousness and were to breathe or move, that person would be experiencing excruciating pain.”
The defense’s expert, Dr. D’Michelle DuPre, a retired forensic pathologist, countered by testifying that an inmate shot by the firing squad in South Carolina would lose consciousness quickly enough that they would not feel pain.
“The firing squad would be very rapid,” DuPre said. “It would be very destructive to the heart and the surrounding tissue. I believe that the person would become immediately unconscious, would not feel pain, and it, in fact, would not be cruel or unusual punishment.”
Turning to electrocution, Arden told the judge that “As long as the person is still conscious when that person would be perceiving the high voltage of electricity through his or her body, that in and of itself would be painful and excruciating.”
“I’m sorry to have to say this so plainly, but you get the effects on parts of the body, including internal organs, that’s the equivalent of cooking,” Arden said.
Rebutting Arden, another defense witness, Dr. Ronald Wright, testified that electrocution kills quickly and that “sending two high-voltage circuits of electricity followed by a low-voltage circuit — a person would become insensate, losing their ability to feel physical sensation, before their brain sends pain signals.” He concluded that “If I had been sentenced to die, that would be my choice because it doesn’t hurt.”
The battle of the experts in methods of execution litigation suggests that no one can really know how painful any method of execution will be. It also invites courts simply to defer to legislative judgments.
Moreover, as Elaine Scarry rightly observes in The Body in Pain, no one can really know the pain of another person. Pain, Scarry says, “has no voice…. When one hears about another’s physical pain, the events happening within the interior of that person’s body … (belong) to an invisible geography that, however portentous, has no reality because it has not yet manifested itself on the visible surface of the earth.”
Pain is characterized by its “unsharability, and it ensures this unsharability through its resistance to language.”
Efforts to know how painful any execution method is can provide neither a certain nor a reliable grounding for a jurisprudence that seeks to regulate the technologies through which the state puts people to death.
If Scarry is right, then the courts in the United States have created for themselves epistemological and interpretive as well as legal and political problems. By foregrounding the question of pain, they necessarily run up against our limited capacity to know the quantity or intensity of pain, and to link it to any particular execution method.
Instead of debating about the pain of the condemned, we should focus on the more basic question of whether death, no matter how it is delivered, is a punishment the government should ever use.
When we do, we should say no to the death penalty itself.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
