Warning: Death, Judicial Murder, Capital Punishment, Suicide

There are so many things wrong and confusing with how the US does what it calls “justice” that it’s hard to know where to start. For me, it’s a topic I’ve had a whole range of feelings about, for decades. I started with a politically naive “eh, shoot ’em!” viewpoint, because I hadn’t had a chance to observe and think, or to study the degree to which economic inequality and American racism drive and underpin the entire “justice” system.

I’ll stop scare-quoting “justice” system, but you should assume that when I use the word “justice” I’m probably being semi-sarcastic. Let me start at the beginning because this may wind up being a series of postings.

Let me offer a disclaimer: this is going to be somewhat scattershot because I don’t have a historical perspective to offer, that I can hang an argument onto. Normally, I like to try to relate a philosophy posting to some kind of essential treatment that can serve as a framework for my opinions. In this case, I’m going to wallow around in pure opinion-land: I am not arguing that I’m right about any of this, I’m dealing in opinion because if I try to back them up with my assessment of facts, I’ll write a book and that book has already been written (I just haven’t found it yet) with better words and research than I can manage. I think that anything I write in here is defensible as fact, but if you see something you don’t think is factual, I welcome correction – especially if it’s accompanied with other facts that we can all learn from.

The American justice system can’t figure its story about what it’s there for:

1. Is it there to rehabilitate people and help them get back into society? No, it can’t be, because incarceration makes people worse and the judicial system is designed to not let go of you – they try to supervise you, monitor you, and (of course) make it hard for you to get a decent job afterward. Unless you’re rich, of course.
2. Is it there to terrify potential wrong-doers into behaving, because they can see that crime does not pay? No, that can’t be it, either, because the system of plea-bargains and over-charging in order to terrorize people into agreeing to more severe charges actually demonstrates conclusively that it doesn’t matter what you did, you’re screwed if you get into the system at all. And, per 1) above, once you’re in the system, you’re screwed for good. Unless you’re rich, of course.
3. Is it there to remove wrong-doers from society, so they no longer pose a threat? No, that can’t be it, because there is a crazy patchwork of rules that will sometimes result in life in prison without parole for selling a few ounces of pot, but you can kill a pedestrian while you’re driving drunk on opiates in your pick up truck and be back on the road in a month. Especially if you’re rich, of course.

On top of all of that, the justice system asserts the state has the right to kill its citizens. More bizzarely, still, the United States – nominally under the governance of a single constitution – has some states in which you can be executed for one crime, other states in which you can be executed for another, and other states in which you cannot be executed at all. And you can be executed in one way, or another – gassed or poisoned or left to die of untreated cancer or hepatitis in your cell. And, depending on what you did and how badly the establishment wants you dead, they can cook up a reason to try you in a state where death is a potential outcome, if you were captured or did your crime in a state where it wasn’t. (e.g: John Allen Mohammed [wikipedia] and Lee Malvo) They just want you dead so badly they bend the rules a little bit.

Last but far from least, you can be sitting on death row scheduled to be executed in an hour and the governor of the state may decide to stop your execution; that’s one hell of a consistent judicial process, isn’t it? Can you conceive of any possible way that justice might be an outcome of such a setup? Did you notice how I didn’t add “especially if you’re rich, of course” to the previous thought? That’s because rich people don’t wind up on death row, with rare exceptions. They bend the rules a little bit for the rich: you can upgrade your prison room assuming the expensive lawyer you paid for couldn’t get you off outright, you have a better chance of getting probation and never seeing the inside of a prison, etc.

It seems to me that justice must be fair, and to be fair, it must be consistent. If it’s consistent then we’d expect that the racial and economic demographics of the prison population would roughly match the population at large. But in the United States it’s not even close to consistent. So, there’s a basic argument right there, which is that an inconsistent justice system is not fair, and an unfair justice system cannot legitimately put its citizens to death.

When I said “The American justice system can’t figure out what it’s there for” I was being sarcastic. Its purpose is to maintain social cohesion, which is an indirect way of saying “what the rich and powerful want” – and, if that’s all, the American justice system is doing a pretty good job. In any other way, I guess we can say it’s doing an OK job of keeping the wheels on, but that’s only happening at the cost of many broken lives and a great deal of unfairness.

If we look at state executions not as punishment but as judicial murder, then their purpose makes some sense: it’s a performance intended to demonstrate the power of the state over the individual. Remember our definition of “terrorism” from a while ago? It’s an attempt to influence the political process by bypassing it. Perhaps the purpose of capital punishment in the United States is, subliminally, “we’re going to show people just how far we’re willing to take things if they mess with us.” That’s part of a long-standing tradition of judicial terrorism that goes back to the dawn of recorded history. It is not enough that justice be done, it must be seen done, and it’s best if it’s scary and disgusting and there is blood and smoke and screaming.

In Tudor England, if you were an enemy of the state, you could be hanged, drawn, and quartered. What’s interesting about that is, most of the mutilation happens to the victim’s corpse, after they are beyond pain. Compare that with what happened to Giordano Bruno, or even to what they do in Saudi Arabia, today.

It seems that the Saudis method of publicly mutilating criminals and enemies of the state is designed for maximum repressive value: not only does the state demonstrate its power to break and bend its citizens’ bodies and blood, it encourages them to live in fear of its power. When the Saudi government decided to judicially torture Raif Badawi [wikipedia] for apostasy and setting up a website, it did it in a way such that there was maximum public awareness, and then arrested Badawi’s lawyer and threatened his wife. That’s not about justice – it’s about scaring the citizenry with a conclusive demonstration of the power of the state.

That’s just wrong; it’s so wrong it’s hard to know where to start. Because, if the premise is that the state is an emergent property of the citizenry – i.e.: it governs with the consent of the governed – then it’s an admission by the state that it’s not legitimate. You do not govern by the consent of the governed if you have to periodically scare the shit out of them to compel consent. That may have worked for Hammurabi and it definitely worked for Lucius Cornelius Sulla, but those were societies that didn’t pretend to be based on a social contract; it was understood all along that the government was in place because of the divine right of “shut the fuck up or I’ll kill you” – the same argument for political legitimacy that the Saudi monarchy makes. The United States pretends to be different than that. Yet, if the U.S. government is so different, why does it have to engage in judicial terrorism to scare people into obeying the state? Why does the shining city on the hill have to use the same techniques as ISIS to compel its citizens’ loyalty?

The death “penalty” as it is practiced in the United States – like it is in Saudi Arabia or in Sulla’s Rome – is a demonstration of the state’s power over its subjects (let’s not call them “citizens”) and prolonging it, making the prisoner’s survival appear to be in doubt, or offering up the tantalizing possibility of a last-minute stay (see the power of the state! it can show mercy, too! grovel!) is all part of a big fol-de-rol that is marketed through the media for maximum effect. They don’t have to kill very many people, as long as the people they do kill are killed publicly, and it’s got enough blood and smoke and screaming that the rest of the population get the message.

Now, I want to get to the topic that got me thinking about this in the first place: the lethal injection mix used in Texas. I’ve written about this on other blogs [fabius maximus] but I’ll repeat the main point, which is that you can die painlessly and even happily from a chemical cocktail. Prince did. People do all the time. The protocol used for choosing death is not painful at all – in states like Oregon you can get a great big dose of benzodiazapine, take it, and die.

Peter Smedley chooses the time and place of a painless death over certain debilitating and humiliating death from a medical condition. This is from the beautiful and moving documentary “Choosing to Die” by Terry Pratchett, who had his own reasons to be concerned with death with dignity. [imdb] You’ll notice, if you can watch that video, that Mr Smedley’s death was about as gentle as you can get.

When you’re in death row, in a prison, and you try to kill yourself: they’ll do anything they can to keep you alive, so that you don’t “cheat the hangman” – in other words, so the state doesn’t lose its chance to demonstrate its fearsome brutality to your fellow citizens. The hangman doesn’t care but the state does. All the theater around the executions in Texas and the other more barbarous states of the United States – it’s posturing by the state to demonstrate that, indeed, it has the power of life and death over “its” citizens. If the true reason behind the “death sentence” was to get the criminal permanently out of circulation, the drama is unnecessary: “Do you want a couple of shots of alcohol with your heroin dose? We see you’ve chosen Pink Floyd’s Comfortably Numb for your exit theme. Just press ‘Play’ on the music box and drink your shot, then I’ll give that lever over there a slow steady squeeze and you’ll be gone.”

The lethal injection cocktail that the US states use is … odd to me. But that’s because my experience with drugs has generally been recreational, not punitive. Let me emphasize: the use we are talking about is punitive – if the State of Texas wanted to give a criminal a painless death, they could: they have plenty of heroin and buckets of prescription painkillers. The lethal injection cocktail is three drugs, which ought to make you immediately suspicious when it’s easy to cause a painless death with one.

1. A barbituate or disassociative to cause unconsciousness – Sodium Thiopental(“Trapanol”), Diazepam (“Valium”), or Midozalam(“Versed”)
2. Vecuronium Bromide
3. Potassium Chloride

In Oregon, when you’re taking the “death with dignity” pills (or given the equivalent in liquid form, like Mr Smedley was, above) you’re ingesting a massive dose of barbituates: 9g of Secobarbitol (“Seconal”)(200-300mg of Seconal is a typical post-operative surgical dose) – you just … die. In Texas, why don’t they give people that? Why is Texas’ lethal injection protocol so complicated? Rockers die all the time from alcohol and pills; it’s not hard. Of course, you don’t just die – like I said above – your nervous system gets so suppressed that you stop breathing, or the muscles in your throat collapse and you suffocate, or something like that. But you don’t care because you’re so far under that you don’t know enough about what’s going on to get upset about it.

For someone who doesn’t want to die, being given a big dose of barbituates or disassociatives is going to be upsetting. Especially because they’re going to feel consciousness slipping away and they know it’s the last time – they’ll fight it. But it’s as if the Texas protocol is designed to heighten the upset, sort of like the way that the ISIS executioner in the picture above is pressing the knife into the victim’s arm so he can tell what’s coming – this is judicial sadism. They don’t just want the criminal to die, they want the criminal to suffer, but they can’t say that because of that pesky “cruel and unusual punishment” thing in the constitution. My suspicion is that what Texas and Oklahoma and the other barbarian-run states of the union would rather do is beat the criminals to death, or otherwise do something bloody and horrifying, that would adequately cow their subjects and would allow them the full pleasure of dominance. They’re not nietzschean supermen who are self-actualized enough to come out and say that, like the ISIS executioners are; it must be doubly painful for them to realize that they are soft cowards who wouldn’t be capable of doing their own killing and they needed to establish this great legalistic fig-leaf to cover their sadism and nastiness – and the brutality of their constituents who support the process.

What is going on with the “botched” executions?

When you read about an execution like that of Clayton Lockett [wikipedia] or Joseph Wood [wikipedia] it doesn’t make sense. Sometimes the subjects (like Wood) are given a strongly lethal dose of the first drug (e.g.: 15 grams when a lethal dose is 1 gram and a normal surgical dose for anaesthesia might be .02 gram) – Wood survived for over an hour on a dose comparable to what killed Mr Smedley in under a minute. In Lockett’s case, it’s easier to see where things went wrong: because the local justice authorities can’t get a real doctor to play executioner:

A paramedic tried twice to put an IV needle into Lockett’s left arm but failed. She then tried to insert the needle into his brachial vein in his biceps but also failed. She asked for help from a doctor in attendance, Johnny Zellner, who tried three times to get the IV into the jugular vein in Lockett’s neck but failed. He then tried the subclavian vein in Lockett’s collar bone but failed again. The paramedic tried two veins in the left foot but failed. Finally Zellner managed to insert the needle in the femoral vein in the groin. Administration of the first drug midazolam, a sedative, started at 6:23 p.m CDT, but the IV dislodged from the vein and further drugs were injected into the flesh. Lockett was declared unconscious at 6:33 p.m.[wikipedia]

That shit-show was at least partially a result of the justice authorities single-minded pursuit of demonstrating its dominance and resolve: they could not find an executioner that was competent so they had someone who was not. I assert that the paramedic was not competent because being unable to hit a vein in 3 attempts is not competence. The doctor apparently decided “screw my hippocratic oath” and took 7 attempts before he was able to get enough of the first drug into the victim that he could be declared unconscious.

After being declared unconscious, Lockett was able to raise his head and said, “Oh, man”, “I’m not…”

Even granted that non-consensual anaesthesia is particularly difficult, that’s bizzare. Apparently they then finished the job with the next two drugs in the cocktail, which are also – each – lethal doses. The Vancuronium Bromide (Curare) causes paralysis and eventual suffocation when the diaphragm can no longer function, and the Potassium Chloride stops the heart. So Lockett experienced slowly increasing paralysis and a massive heart attack.

When they draw and quarter you, they hang you first. Your neck is broken, and you’re dead. What Lockett and Wood experienced was worse.

The original lethal injection protocol was invented in the 1970s after a number of botched hangings:

On May 11, 1977, Oklahoma’s state medical examiner Jay Chapman proposed a new, less painful method of execution, known as Chapman’s protocol: “An intravenous saline drip shall be started in the prisoner’s arm, into which shall be introduced a lethal injection consisting of an ultrashort-acting barbiturate in combination with a chemical paralytic.” [wikipedia]

The use of the paralytic appears to be to keep the victim from fighting and thrashing about, which they might do even if they were unconscious, struggling for air. Or, once the potassium chloride stage was added, from twitching as the body reacts to the heart attack it’s experiencing. Thus evolved this weird dance of death in which, if one step fails (the first one) the other two are still lethal but are fully experienced and very unpleasant. Imagine what happens for someone like Lockett, who is somewhat sedated but clearly not unconscious, who feels their body succumbing to paralysis and then a massive heart attack. The paralytics, like Curare, are particularly scary since you can’t move but you’re conscious and experience everything – including your inability to breathe – fully and clearly. If you survive until the potassium chloride, you get to be experience the heart attack but you’re unable to move, breathe, or make a sound. All I can think of is the title of the old Harlan Ellison story I Have No Mouth and I Must Scream. [wikipedia]

As a society, we should not tolerate this. Either we’ve created a society in which the society we’ve created thinks it can kill us for disagreeing with it, or we’re subjugated under an authoritarian regime that arrogates the power to kill us whenever and however it wants. Either of those is unacceptable.

My views on justice systems are informed by my anarchism. Building justice into a society is a particularly interesting problem in anarchies, since an autonomous individual can always reject the authority of the state, which is a fairly typical move (because it’s strong) – that leaves us with the problem of supporting a justice system as fair and applicable to everyone, that it may be acceptable. In an imagined ideal anarchy, capital punishment would have to resemble a situation in which a criminal has the full import of their acts explained to them, and they understand, and beg for death. That sounds very improbable, indeed. I imagine most anarchist criminals’ defenses would play like Socrates’ Apology in which he argues that he was really doing Athens a big favor by asking annoying questions and teaching annoying answers, and his punishment should be a reward. The result was a beautifully documented judicial murder/suicide. Anarchists (except for a sociopathic fringe) are not militiating for an unjust society in which everything is chaos. On the contrary: many anarchists see that the state is unjust and is therefore an imposition; a just society would be a good thing.

Capital punishment as terrorism: I admit I’m on shaky ground, there. Some definitions of terrorism hinge on the argument that amounts to: “if the state does it, it can’t be terrorism.”  Because some definitions of terrorism require that the actors be non-state and/or outside the law then it’s impossible for a state to terrorize. I’ll just observe that that’s a mighty convenient definition, if you’re a supporter of all states versus all people, all the time.

Mano Singham posts “Can you be stripped of citizenship for exceeding the speed limit?”[ftb] – in a sense this posting is my partial answer: “Of course. The state does not respect the citizens of which it is comprised. It never did. Its leaders consider themselves to be the state – you are living under the forcible occupation of an oligarchy, not participating in a democracy.”

“Compel its citizens loyalty” – of course, I stand with Robert Paul Wolff: loyalty that is compelled is voided. It’s merely obedience that is given until the oppressor turns their back – a citizen owes no loyalty to a state that would compel fealty. [stderr]

FYI – the footage of Peter Smedley was shot in Switzerland, not Oregon; the process he underwent is fully described in the documentary. It appears to be a bit more closely regulated than the Oregon voluntary death protocol, which is documented in How To Die In Oregon. [imdb]

“Too low dose could cause McGuire to experience air hunger” [newsweek]

How do we know what a Curare paralysis feels like? A doctor (I forget his name) deliberately experienced a measured dose, in an iron lung, because he was curious as to whether or not the Curare otherwise impaired consciousness. I can’t decide if that’s incredibly brave, or masochistic, or both.