The Court Puts Death on Hold

At issue: the 'how' of the death penalty, not the penalty itself


The death chamber at the Texas State Penitentiary at Huntsville.

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Earl Berry may have the unenviable distinction of eating his last meal twice. After consuming a feast of pork chops, sausage, and salad (heavy on the onions), the Mississippi inmate was a mere 19 minutes from meeting his maker before a call from the United States Supreme Court stayed his execution by lethal injection.

The high court intervened as it considers for the first time a peculiarity in the American justice system: how to administer the ultimate punishment without the mechanics of that sanction violating the Constitution's prohibition of "cruel and unusual punishments."

Specifically, the high court is considering how judges should evaluate claims that the three-drug cocktail used in lethal injections amounts to cruel and unusual punishment. That case, Baze v. Rees, will be heard in January. The nation's highest court has allowed only one lethal injection to proceed since agreeing to consider the issue. Three have been stayed--a strong indication that the court wants no more until the justices hear the case. In all, 37 states administer lethal injections, and, of those, 19 use it as the sole method of execution. Most now have put executions by lethal injection on hold.

But the stay is hardly a death knell for capital punishment. Once the procedural questions are resolved, states will most likely be free to continue administering lethal injections, albeit with changes to the mix of drugs used to induce death. "If the current drugs are found to be too cruel, states can easily come up with another set that is regarded as more humane," says Stuart Banner, a law professor at UCLA and author of The Death Penalty: An American History. "This case is not exactly what death penalty opponents have been waiting for."

Some legal scholars view the Supreme Court's decision to consider the method to be a tacit endorsement of the broad right to conduct executions. Yet the very questioning of the mechanics of death reveals the public's deep-seated ambivalence toward state-sanctioned killing, death penalty opponents say. "In European countries, the public's reluctance manifested itself in questioning the method, which, coupled with political courage, has led to its abolishment there," says death penalty opponent Robert Lifton, a professor of psychology at Harvard University.

Indeed, with every new method of execution comes a promise of less pain. Stoning and beheading were popular methods of ancient executions. The guillotine was invented to better facilitate a simpler severing of the head, rather than relying on a strong axman. In American history, the condemned were occasionally burned at the stake--not witches but slaves. Hanging was popular, especially after new methods, including a refined knot and a trapdoor, made death more sudden. The state of Washington hanged two prisoners in the early 1990s, and Delaware presided over the last American hanging in 1996. When Tennessee ended its use of hanging, the state ordered pieces of the gallows incorporated into its new electric chair.

The chair. The design of Old Sparky, as Hollywood darkly christened the new device, was the result of marketing as much as a desire to take life humanely. Thomas Edison, eager to promote his direct current method of electrical generation over the alternating current proposed by George Westinghouse, was eager to see AC used to kill prisoners. New York State bought AC generators and prepared to execute its first condemned man, an execution made possible by the Supreme Court ruling, which held that electrocution was certain "to produce instantaneous, and therefore painless, death." Often cited, the case is misunderstood to endorse the method when it actually refers the issue back to the states to determine what is or isn't cruel.

Not a good job. The new technology of the electric chair didn't work as planned. "Make a good job of this," convicted murderer William Kemmler implored his executioners in 1890. They didn't. After the first jolt of AC, a doctor declared Kemmler dead. But his body continued to stir and the machine was reconnected and he was zapped again until smoke began to seep from his head.