Art for The American Way of Death.
Daniel Fernandez,  July 22

The American Way of Death

On the return of the federal executions

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Last week, inside a small, green-tiled room in Terre Haute, Indiana, the federal government executed Daniel Lee, Wesley Purkey, and Dustin Honken. Lee spent his final four hours alive strapped to the death gurney, while lawyers from the Department of Justice labored through the night to guarantee his execution. When he was killed on Tuesday morning, it was with an expired death warrant. Two days later, the government followed with the killing of Purkey, who has Alzheimer’s. It used another expired death warrant, and withheld brain scans indicating the severity of his cognitive decline (Purkey’s lawyers claimed he could not remember the name of his loved ones and believed his counsel was part of a government conspiracy seeking to silence him). And on Friday afternoon, federal officials capped off their killing spree with Honken, whose final words were a poem by a Jesuit priest asking to go “where the green swell is in the havens dumb / and out of the swing of the sea.”

These executions, the first undertaken by the federal government in seventeen years, were administered using a lethal dose of pentobarbital, a sedative that can provoke sensations of suffocation and drowning. One medical expert concluded that the drug would leave the men in “excruciating suffering” during their final moments alive. Their lawyers sued, and proposed alterations to the execution protocol. A federal judge ruled in their favor, noting that even an “execution by firing squad would significantly reduce the risk of severe pain” when compared to the method proposed by the Justice Department. Their petition was eventually denied.

The choice to rekindle the federal death penalty, a practice that virtually every other democratic country has forsworn, is a dismal one, if not quite as significant a deviation as it appears on first glance. After all, the last seventeen years have seen plenty of other cruel and barbarous acts carried out by dutiful civil servants: police officers have gunned down hundreds of unarmed citizens and brutalized countless more; politicians have poisoned their constituents, closed public schools, and savaged the social safety net without a second thought; and prosecutors have directed tens of thousands of vulnerable people into cages—and then touted their progressive credentials in reelection campaigns.

Seizure, murder, and the diminishing of human life are all intrinsic features of American governance, something tens of thousands of preventable deaths from Covid-19 has made painfully clear. The deceit and neglect of the political establishment may not be as plainly villainous as the tools wielded by the executioner, but antipathy for life and state-sanctioned death are inextricably linked.

Still, the gurney elicits outrage and panic for good reason: it is terrifying to watch a government deploy its full might on any person, no matter their culpability. And in the United States, capital punishment has a particularly woeful history, marked by racial inequalities that are worse today than they were four decades ago. Inadequate legal counsel, juror bias, prosecutorial misconduct, evidence tampering, and false testimony are so endemic in capital cases that at least one in every twenty-five people sentenced to die is innocent[1]. The death penalty does not so much punish the “worst” people, but the most vulnerable subset of people sentenced for violent crimes.

Antipathy for life and state-sanctioned death are inextricably linked.

And yet it comes as little surprise that President Trump and his functionaries have sought to expand and fortify its place in American life. The president has long venerated punishment for its own sake, promising torture a “hell of a lot worse than waterboarding,” expressing admiration for Rodrigo Duterte’s vigilante drug crackdown in the Philippines, and pondering the legality of executing government whistleblowers. These vengeful sentiments predate his political career. “I want to hate these muggers and murderers,” he wrote in reference to the Central Park Five. “I am not looking to psychoanalyze or understand them, I am looking to punish them.”

While concerns about legality or morality may have never mattered to Trump, he is only free to act out on his vindictive fantasies because decades of jurisprudence and legislation have elevated the government’s right to kill its citizens over due process, or basic respect for human life. Incarcerated people can now be executed without so much as a post-conviction review, thanks to a cruel deadline provision in a crime law signed by Bill Clinton. A few states do not even promise counsel to the condemned, perhaps because successful capital defense cases can cost hundreds of thousands of dollars to mount.

Like so many happenings in Trump’s America, last week’s executions serve as reminders that political regimes do not require capable executives to succeed in being immensely cruel. But even the most inept governments must have bureaucrats willing to shape and justify their homicidal aims. It is fortunate, then, that the Trump administration’s murderous gambit was greenlit by the highest court in the land, whose five conservative justices gawked at the recommendation of a lower court to slow the wheels of death in order to seriously weigh and debate the merits of the cases before them. With barely a shrug, they reaffirmed the state’s power to proceed with the prompt and premeditated murder of its citizens.

This callous legal maneuvering might be the only option left to those who would like to see homicide-by-government preserved as a legal remedy. Almost half a century ago, Justice Marshall Harlan observed that the court’s ability to define which acts deserve death is “beyond present human ability.” Two decades later, Justice Harry Blackmun, once an avowed supporter of the death penalty, concurred, writing that “the decision [of] whether a human being should live or die is so inherently subjective—rife with all of life’s understandings, experiences, prejudices, and passions—that it inevitably defies the rationality and consistency required by the Constitution.” Vowing to never again “tinker with the machinery of death,” Blackmun rejected the premise that the government could ever deliver on the promise of a constitutional execution.  Such fantasies, he concluded, diminish us all.

But there are those who care little for the Constitution in these contexts, and others who were eager to see the three men killed last week suffer for the immense harm they inflicted. The father of one of Purkey’s victims remarked after his execution that “there’s monsters out there that need to be gotten rid of. They need to be put down like the dogs they are.” When asked what he thought of Purkey’s deathbed apology, he replied plainly: “I didn’t give a shit.”

In these situations, capital punishment might appeal because it promises a degree of closure to the nightmarish despair experienced by those living with extreme pain and loss. But it is in these exact situations in which punishment is most inadequate. As the critic Elaine Scarry argues, pain is an experience that annihilates meaning and interpretation; what makes pain pain is the very fact that it is incommunicable, impossible to share. Responding to news of Daniel Lee’s looming execution, a family member glumly observed that his death would be of little benefit to her or her loved ones’ memories. “To have their stories end with such a horrific act done in their name does them a disservice,” she told a reporter, referring to her slain cousin and aunt. “We don’t want that to be the last chapter in their story.”

Even if there are no laws capable of delivering a suitable last chapter for those who have suffered so much, asking the aggrieved to put their own lives at risk to attend an execution in the middle of a pandemic—at a facility with documented cases of Covid-19—is yet more evidence of a system that values the production of death over the preservation of life. The court had a clear choice here, and they picked the option that only introduced more harm, more pain, and more suffering. As Purkey put it moments before the first dose of pentobarbital entered his body, “this sanitized murder really does not serve no purpose whatsoever.”

 

[1] Correction: An earlier version of this story mischaracterized the percentage of those killed by the state who were in fact innocent. It has been amended.

Daniel Fernandez is a writer and researcher based in New Jersey. His writing has appeared in SmithsonianIn These Times, and The Nation.

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