A recent arti­cle in Time Magazine by Editor-at-large David Von Drehle exam­ines the cur­rent state of the death penal­ty in the United States at a time when the Supreme Court is con­sid­er­ing the con­sti­tu­tion­al­i­ty of the most wide­ly used method of exe­cu­tion – lethal injec­tion. Von Drehle writes, ​“In a per­fect world, per­haps, the gov­ern­ment would­n’t wait 30 years and sev­er­al hun­dred exe­cu­tions to deter­mine whether an exe­cu­tion method makes sense. But the world of cap­i­tal pun­ish­ment has nev­er been that sort of place. This weighty moral issue, expres­sive of some of our soci­ety’s deeply held val­ues, involves a lot of wing­ing it.”

Von Drehle says that the death penal­ty debate often comes down to the ques­tion of whether to ​“fix it or end it.” But that debate, he says, miss­es the real­i­ty. ​“One gov­ern­ment bud­get con­tains mil­lions of dol­lars for pros­e­cu­tions, while anoth­er depart­ment spends more mil­lions to defend against them. Indeed, the very essence of ambi­gu­i­ty is our vain search for a blood­less, odor­less, motion­less, pain­less, fool­proof mode of killing healthy peo­ple.”

He com­pares the death penal­ty to a ​“Rube Goldberg machine” that we are con­stant­ly tinkering with:

Supreme Court Justice Harry Blackmun apt­ly described this end­less activ­i­ty as ​“tinker[ing] with the machin­ery of death.” He spoke as a vet­er­an tin­ker­er, hav­ing helped cook up an abstruse set of require­ments for cal­cu­lat­ing the aggra­vat­ing and mit­i­gat­ing fac­tors in a pris­on­er’s life and crimes – a con­cept that con­tin­ues to bog down juries and judges a gen­er­a­tion lat­er. Other vet­er­ans of the Supreme Court’s long strug­gle with cap­i­tal pun­ish­ment have also soured on the exper­i­ment. Justice Lewis Powell told a biog­ra­ph­er that the vote he most regret­ted was the one he cast in 1987 to save cap­i­tal pun­ish­ment. Another mem­ber of the five-Justice major­i­ty in that case, Sandra Day O’Connor, told a group of Minnesotans not long ago that they should ​“breathe a big sigh of relief every day” that their state does­n’t have the death penal­ty. Justice John Paul Stevens, who as a new Justice in 1976 vot­ed to restore cap­i­tal pun­ish­ment, now speaks of the ​“seri­ous flaws” in the sys­tem he helped devise.

However, attempts to end cap­i­tal pun­ish­ment must over­come iner­tia and the weight of pub­lic sen­ti­ment. This isn’t easy. In the U.S., sup­port for the death penal­ty has fall­en from a high of about 80% at the peak of the mur­der epi­dem­ic of the 1980s and ​’90s to some­where between half and two-thirds, depend­ing on the poll. But politi­cians know that a 69% approval rat­ing is noth­ing to sneeze at. Only one state has abol­ished cap­i­tal pun­ish­ment since the Supreme Court rein­stat­ed it in 1976: New Jersey, last month. Legislatures in New Mexico, Montana, Nebraska and Maryland appear to be with­in one or a few key votes of fol­low­ing suit. New York’s high court struck down that state’s death penal­ty with­out stir­ring up much protest. But while that means 14 states now have no death-penal­ty law in effect, the major­i­ty of states are a long, long way from giving up.

Instead, the death penal­ty is being hol­lowed out. Nearly all the states have adopt­ed the alter­na­tive of life-with­out-parole sen­tences, and pros­e­cu­tors and juries are embrac­ing the option. Life with­out parole does­n’t trig­ger the sep­a­rate sen­tenc­ing tri­als and auto­mat­ic appeals that can make death sen­tences so finan­cial­ly and emo­tion­al­ly cost­ly. As a result, pros­e­cu­tors are seek­ing and juries are deliv­er­ing far few­er death sen­tences: last year’s total of 110 was the low­est since the intro­duc­tion of the mod­ern death-penal­ty sys­tem. Nationwide, the num­ber of death sen­tences has fall­en almost two-thirds, and the trend extends even to Texas, the heart of the death-penal­ty machine. There, 14 pris­on­ers were sen­tenced to death in 2006, com­pared with 40 a decade ear­li­er.
…

We now have a sit­u­a­tion in which a major­i­ty of the states that autho­rize the death penal­ty sel­dom if ever use it. Last year only 10 states car­ried out an exe­cu­tion. And even that num­ber over­states the vig­or of the sys­tem. If you don’t count exe­cu­tions of inmates who vol­un­tar­i­ly dropped their appeals and asked to be killed – essen­tial­ly gov­ern­ment-assist­ed sui­cides – the state count falls to eight.

Our Rube Goldberg con­trap­tion is being dis­man­tled the same way it was built – not straight­for­ward­ly but in unco­or­di­nat­ed and even incon­sis­tent steps. The ungain­ly, ambiva­lent col­lapse of the death penal­ty seems unfit­ting for a pun­ish­ment whose very exis­tence is large­ly sym­bol­ic. But the trend is unmis­tak­able.
…

The dis­cus­sion itself is anoth­er sign of the nation’s ambiva­lence about the ulti­mate, irre­versible pun­ish­ment. And as long as we’re ambiva­lent, we’ll con­tin­ue to have the sys­tem we have made for our­selves – inef­fi­cient, beyond repair and increasingly empty. 

(“Death Penalty Walking,” by David Von Drehle, Time Magazine, January 3, 2008). See Lethal Injection, Public Opinion, and U.S. Supreme Court.

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