Article of Interest: Law Review Article Considers the Human Cost of Execution Work

In her forth­com­ing arti­cle in the U.C. Irvine Law Review, Professor Alexandra L. Klein argues that the effect of exe­cu­tions on the peo­ple who car­ry them out has been large­ly over­looked in both legal schol­ar­ship and con­sti­tu­tion­al doc­trine. If the state choos­es to exe­cute some­one, she writes, some­one must per­form the killing, and the psy­cho­log­i­cal con­se­quences deserve a cen­tral place in con­ver­sa­tions about cru­el­ty under the Eighth Amendment. The author argues that evi­dence of harm to exe­cu­tion par­tic­i­pants could strength­en method-of-exe­cu­tion chal­lenges brought by peo­ple fac­ing exe­cu­tion. More broad­ly, she con­tends, the harm pro­vides anoth­er rea­son to ques­tion whether cap­i­tal pun­ish­ment can be car­ried out in a man­ner con­sis­tent with the Constitution.

Every exe­cu­tion depends on a team of peo­ple. Correctional offi­cers, med­ical per­son­nel, prison admin­is­tra­tors, and war­dens each play a role in car­ry­ing out the sen­tence. Professor Klein argues that exe­cu­tions car­ry a hid­den cost on them. The peo­ple tasked with car­ry­ing out exe­cu­tions often suf­fer last­ing psy­cho­log­i­cal harm, and that harm, Professor Klein argues, rais­es con­sti­tu­tion­al ques­tions that courts have yet to fully confront.

Even the ques­tion of who per­forms exe­cu­tions is more com­pli­cat­ed than many peo­ple assume. Popular depic­tions often sug­gest that exe­cu­tion teams are made up entire­ly of vol­un­teers. In real­i­ty, that is not always the case. Oklahoma, for exam­ple, pro­hibits employ­ees from vol­un­teer­ing for exe­cu­tion duty and instead assigns the respon­si­bil­i­ty as part of their jobs.

Professor Klein places this work with­in the soci­o­log­i­cal con­cept of ​“dirty work,” occu­pa­tions that soci­ety views as phys­i­cal­ly, social­ly, or moral­ly taint­ed but nonethe­less expects some­one to do. Correctional sys­tems often dis­trib­ute respon­si­bil­i­ty among mul­ti­ple par­tic­i­pants so that no sin­gle per­son feels sole­ly respon­si­ble for a pris­on­er’s death. Yet the research sug­gests that shar­ing respon­si­bil­i­ty does not elim­i­nate its psychological effects.

The accounts she col­lects span more than a cen­tu­ry. John Hurlbert, a New York exe­cu­tion­er who car­ried out rough­ly 120 elec­tro­cu­tions dur­ing the ear­ly twen­ti­eth cen­tu­ry, report­ed­ly expe­ri­enced what mod­ern schol­ars describe as a ner­vous break­down. Decades lat­er, researcher Rachel MacNair pro­posed that exe­cu­tion­ers may expe­ri­ence a dis­tinct form of trau­ma that she calls Perpetration-Induced Traumatic Stress. After review­ing first­hand accounts from peo­ple involved in exe­cu­tions, Ms. MacNair iden­ti­fied symp­toms con­sis­tent with both PTSD and this pro­posed con­di­tion, while acknowl­edg­ing that more research is need­ed on the sub­ject. Professor Klein sim­i­lar­ly notes that the field remains under­de­vel­oped but argues that the evi­dence already avail­able is dif­fi­cult to ignore.

The sto­ries from more recent decades are strik­ing­ly sim­i­lar. Justin Jones, the for­mer direc­tor of the Oklahoma Department of Corrections, wit­nessed twen­ty-sev­en exe­cu­tions and gave the order that began each one. He has spo­ken pub­licly about being haunt­ed by those expe­ri­ences and said he delib­er­ate­ly tried to for­get the names of the peo­ple who were exe­cut­ed as a way of cop­ing. Some exe­cu­tion team mem­bers have resigned rather than con­tin­ue par­tic­i­pat­ing. One for­mer war­den report­ed­ly scrubbed him­self in the show­er after exe­cu­tions in an attempt to feel less ​“dirty.” Another described pray­ing for for­give­ness after every exe­cu­tion. Jerry Givens, who car­ried out exe­cu­tions for years in Virginia, offered per­haps the sim­plest descrip­tion of all: the per­son who per­forms the exe­cu­tion car­ries that bur­den for the rest of his life.

For Professor Klein, these accounts are more than sim­ply emo­tion­al, painful sto­ries; she con­tends that they also point towards a con­sti­tu­tion­al prob­lem. She argues that the Eighth Amendment’s pro­hi­bi­tion on cru­el and unusu­al pun­ish­ment should not be con­cerned only with the suf­fer­ing of the per­son sen­tenced to die. Punishment, she says, should also be eval­u­at­ed by the harm it inflicts on the peo­ple the state requires to admin­is­ter it. If cru­el­ty is mea­sured by its effects, then the psy­cho­log­i­cal injuries expe­ri­enced by exe­cu­tion par­tic­i­pants belong in the con­sti­tu­tion­al analy­sis as well.