Justice and Capital Punishment In the U.S.: A Downright Embarrassment

When an Oklahoma judge and jury sentenced Clayton Lockett to be put to death, they didn’t have in mind strapping him to a gurney, injecting him in the groin with a drug that appeared to only render him unconscious, having him writhe for several minutes, trying to get him off the gurney, and then having him die of a heart attack after the executioner tried to call the whole thing off.

Whatever we think of capital punishment in the abstract, something went horribly wrong when it came to Lockett’s execution. Everyone— advocates for and opponents of capital punishment, the Governor of Oklahoma and its Head of Corrections–is calling for a thorough investigation. Did the drugs work? Didn’t they? Why? Was there a better way to do this?

All important questions, but they don’t get to the broader issue. I don’t mean whether capital punishment is morally right or wrong or even whether it is “cruel and unusual punishment” as the Constitution’s Eighth Amendment bans.

No, the broader issue is why we as a country simply can’t get it right when it comes to the most serious and important action any society can ever take: consciously putting to death one of its own. And if, after years of trying, we can’t get it right, what does that tell us about whether we really believe in the idea of executing people in the first place?

Botching what was supposed to be a lethal injection for Lockett is the most recent, particularly powerful example of what turns out to be a larger pattern. This is far from the only case where these things went horribly wrong. One execution took 43 minutes; another required 86 minutes. And in one case, they had to try injections no less than 18 times before the drugs finally took.

This may have something to do with the difficulty of getting good doctors to participate in the process; the American Medical Association opposes any of its members participating in executions, period. It may also have something to do with drug companies’ increasing reluctance to make available the drugs required. For a whole host of reasons, we’ve proven to ourselves more than once that we just can’t be sure about getting the mechanics right when it comes to the act of taking someone’s life.

If anything, we’re doing an even worse job of deciding who among us deserves to die in the first place. A study done a few years ago by James Liebman at Columbia University found that, over a 22-year period, almost 70% of all death sentences were overturned. And more than 80% of those overturned sentences were never ultimately re-imposed. Someone, the courts, the prosecutors or some other state official, decided that the person shouldn’t be executed after all.

The reason for this shocking error rate isn’t surprising. The police work and the lawyering in these, the most important cases in the justice system, are overall pretty shoddy. Most of the time death sentences are vacated it’s either because the legal assistance was “ineffective” (which means it’s pretty bad–courts generally don’t like to second-guess the lawyering) or there was police misconduct. Let’s be honest, nobody on death row gets the sort of legal representation that is routinely provided for millions of dollars in the average commercial dispute between two large companies.

Probably sensing that we’re doing such a shoddy job in convicting and sentencing people to death, we try to make up for it by stretching out the appeals process to the point of absurdity. We review death penalty cases again and again through various state and federal appeals–all the way up to the Supreme Court and back down again, not once, not twice, but often several times. This led my former boss, Justice Lewis Powell, to recommend streamlining the review of death penalty cases. You see, he was personally opposed to the death penalty on policy grounds but he concluded that, if we were going to execute people, we’d better get our act together, make the decision, and get on with it. All the back and forth and delays made the entire criminal justice system look bad.

And if all that weren’t enough, we aren’t even consistent in doling out the imperfect justice we manage to come up with in death penalty cases. Several studies have shown that whether you’re condemned to death for killing your fellow citizen depends heavily on race. It’s not so much the race of the accused: death row is populated roughly evenly by whites and blacks, and more whites tend to be executed in the end. But when it comes to the race of the victim, there’s no comparison. Based on the data, you are three to four times more likely to be condemned to death if you kill a white person as you are if you kill a black person. The Supreme Court was asked to strike down the death penalty based on this skew in 1987, but it averted its collective eye, concluding there was nothing it could do if there wasn’t proof of intentional discrimination.

It can’t be just an oversight that has led us to this cascade of shockingly bad capital punishment procedures. One failure could be an accident. Two a perfect storm. But taken as a whole, none of the steps we take along the way to executing someone can make us take much pride in our professionalism and competence. There must be something deeper at work here.

All of us are beyond outraged when a man rapes and murders in the depraved way that Lockett did. And we can have a legitimate debate about whether it is ever moral and legal in such extreme circumstances to demand his life in return. But that debate is bizarre and wrong unless we first can convince ourselves that we’re truly committed to making sure that these defendants have the best possible legal representation; that they have full access to the best experts available; that they are tried before our most experienced and wisest judges; that they are fully protected from any taint of racial or other prejudice; and then, when their time comes, that they are put to death in the most humane and certain way possible.

We’ve proven to ourselves time and again that we’re just not willing to put forth that effort. At some point–at this point–we need to consider whether we’re not nearly as certain and committed to the act of execution as some of us thought we were. And, if we’re not, then it truly is morally wrong to continue the practice. If we can’t get it right, then it’s time to put a stop to the embarrassing blight that capital punishment has become.

David Westin, principal in Witherbee Holdings, LLC, is the former president of ABC News and author of Exit Interview. The views expressed are solely his own.