What we deserve

One of the cultural touchstones of my youth is an anti-drug public service announcement that features a stern, mustachioed father confronting his teenage son with the drugs he found in his son's room.  In a scene thick with melodrama, at the end of a series of plantive questions, the father thunders, "Who taught you how to do this stuff?" Reluctantly, tearfully, the son replies, "You, all right? I learned it by watching you!"  The tagline?  "Parents who use drugs have children who use drugs."  For people of a certain age, around mine, that anti-drug PSA is probably second in our memories only to "This is your brain; this is your brain on drugs; any questions."

My memory of this ad was jogged last week, in a most unlikely way, by events in Oklahoma.

Deep-red Oklahoma is hot and heavy to prove its essential conservatism, and it scheduled for this week a rare double-execution that I think must have been designed to put the spotlight on just how far Oklahoma would go to prove its bona fides.  Instead, Oklahoma found the spotlight a little hotter than it expected.

The trend in recent decades has been to shift away from the use of the electric chair and the gas chamber for executions, in favor of lethal injection.  The theory behind using lethal injection, as opposed to more violent means of execution, is that it is more humane.  Instead of having thousands of volts of electricity passed through your body--something that is likely very painful, based upon the reports of people who have been struck by lightning--or being put into an airtight room with a poison gas, the executed person is given intravenous drugs that first anesthetize them, then stop the heart.

In order to conduct a lethal injection, you of course need the drugs to do so.  Drug manufacturers make billions of dollars saving lives, and they depend somewhat upon the goodwill associated with being life-saving companies in justifying those hugs sums.  In recent years, many of the companies that make the drugs routinely used in executions have decided that they did not need the public relations headache of being associated with the death penalty, and that being peddlers of state-sanctioned death doesn't exactly fit with the "lifesaver" public image, so they stopped making them.

(Perhaps they should have gotten some pointers from the GOP, which has no problem billing itself as the "pro-life" party despite being pro-death penalty and largely pro-war.)

The last American maker of sodium thiopental, Hospira, quit making it in 2011.  About the same time, the European Union banned the export of sodium thiopental and other drugs that can be used in executions.  That has put Oklahoma and other states in a quandary.  They have laws on the books that mandate lethal injection, and they desperately want to execute people, but they have had difficulty getting the most effective drugs to do so.  That has resulted in some changes to the "cocktail."

On Tuesday, April 29, 2014, Oklahoma was scheduled to execute Clayton Lockett and Charles Warner at 6 p.m. and 8 p.m., respectively.  Lockett and Warner committed particularly heinous crimes that earned them death sentences.  Lockett was convicted of forcing a woman to watch the gang-rape of a friend, then shooting her and ordering accomplices to bury her alive. Warner was convicted of raping and beating to death an 11-month-old baby.

Faced with a shortage of execution drugs, Oklahoma decided to administer Lockett and Warner a three-drug cocktail that had only once before been used in an execution.  The cocktail consisted of midazolam, a sedative; vercuronium bromide, a muscle relaxant; and potassium chloride, a salt that when injected intravenously stops the heart.  The cocktail had been successfully used by Florida in an execution last year, but with five times as much midazolam as Oklahoma had been planning to use.

When Oklahoma began the execution of Lockett, an IV was inserted into a vein in his groin.  The drugs were administered in sequence, and Lockett was rendered unconscious.  After a few minutes, however, he appeared to awake, according to witnesses, and spoke several halting phrases.  The execution was stopped, and on inspection it was determined that Lockett's vein had collapsed--something that the executioner had not been able to see.  Lockett's groin had been draped for modesty, and in any event the executioner, who controlled the injections by pushing buttons in another room, would not have seen the problem anyway.  When the drugs were injected, they were pushed into the surrounding tissue, not into the vein.

The doctor who was monitoring the execution determined that all of the drugs had been injected, if ineffectually; that the dose was insufficient to be immediately lethal; and that there were not enough drugs remaining to complete the execution effectively.  While prison officials debated what to do--including whether to take Lockett to a hospital for treatment--Lockett suffered a heart attack and died.  His execution was undoubtedly painful and frightening.

Warner was granted a two-week stay of execution pending a review.

I won't waste time crying any tears for Lockett.  He was a criminal of extraordinary sadism.  He died much as his victim did, cruelly and with great pain.

But Oklahoma's experience with Lockett has lessons for us as a society.  Our historical legal tradition extends as far back as Hammurabi, a Babylonian king who lived 38 centuries ago and who, in his innovative written code, prescribed that the punishment for crime should fit the crime:  an eye for an eye, and a tooth for a tooth.  (It is likely that Jewish law, which contains a similar rule, was strongly influenced by Hammurabi, or depending on who you ask, by a common ancestral principle.)

But as a more recent wise man, Mohandas K. Gandhi, is said* to have said, "An eye for an eye will leave the whole world blind."

* - There is actually no historical evidence that Gandhi ever actually said this, although it is entirely consistent with his philosophy.

And if you care about the Constitution, you might look to the Eighth Amendment:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Personally, I've been generally opposed to the death penalty on pragmatic grounds.  The legal process necessary to make the death penalty legally, constitutionally legitimate is so expensive that it would be better simply to decline to impose it.  There is also little evidence that the death penalty is more effective as a deterrent to future crime than imprisonment, and on top of that, the death penalty imposes finality where there is always room for uncertainty.  I have, however, resisted concluding that there is no crime so heinous that the death penalty should be imposed for it.

Lockett and Warner, especially Warner, have committed crimes for which I think reasonable people could conclude that the death penalty is appropriate.

But last week's travesty in Oklahoma, brought on as it was by bloodthirsty officials eager to kill, damn the cautions and consequences, has moved me over into staunch opposition.

When we see men like Lockett and Warner and the unspeakable evil they have committed, it is a most human reaction to want vengeance, to desire to take an eye for an eye.  These despicable humans stir in our hearts a visceral anger, a yearning for compensatory revenge.  How many of us, on hearing how Lockett suffered and died at our hands, reacted with favor instead of disgust?  More than a few, maybe more than didn't.

At the outset I mentioned that 1980s PSA that came to mind.  Is it any wonder that parents who are cavalier about detrimental behavior--be it drug use, or stealing, or whatever--teach their children by example to do the same?  The government is not our parent, but when the government acts as it has in this instance, is it any wonder that the line between the right thing and the wrong thing becomes so blurred in the minds of our citizens?  "Do as I say, not as I do" can only go so far, whether it is a parent or the government speaking.

We deserve a government that appeals to our better selves rather than to our basest instincts.  There are many ways in which we hamstring the government into ineffectiveness because we value certain principles.  This, however, seems to be a blind spot for many people, who insist that justice requires the ultimate punishment.  But if we are going to act as an instrument of justice, we must seek to be better than those whom we would punish.  "An eye for an eye" just isn't good enough.