After a series of dramatic appeals reaching all the way to the U.S. Supreme Court, last night the State of Arkansas put Ledell Lee to death in the state’s first execution since 2005. Lee’s execution was only one of eight set to be carried out by the state in the next few days. This string of scheduled executions is remarkable not only for the number of inmates to be put to death, but also for the timing—in the days after Easter, the Christian celebration of the victory of life over death—and the reason for their scheduling: the fast-approaching expiration date for one of the drugs used in the lethal injection procedure.
Traditionally the debate over capital punishment has centered on a number of key issues: Can the death penalty be justified when other means of protecting society from criminals are available? Does the death penalty have a deterrent effect on violent crime? Does retributive justice have a role in assigning punishments for crime, or is punishment primarily preventative and rehabilitative? Opponents of capital punishment have also raised important questions about racial disparities in death penalty sentences and the frequency of false convictions in death penalty cases. In recent years, however, questions surrounding the drugs used for lethal injections have raised new ethical issues that I believe suggest that the death penalty as it is actually practiced in the United States has more to do with what Pope Francis has called the “throwaway culture.”
Lethal injection protocols call for the use of three drugs: the first anesthetizes the inmate; the second paralyzes him or her; and the third causes cardiac arrest, killing the inmate. In the past, this protocol used a drug called sodium thiopental as the anesthetic. The development of newer, more effective drugs used for medical anesthesia, however, has led to a dwindling supply of sodium thiopental, and in 2011 the lone remaining U.S. producer of the drug, Hospira, halted production when it moved its facilities to Italy. In 2016, the pharmaceutical company Pfizer prohibited the use of its drugs for lethal injections, making it the last Federal Drug Administration (FDA)-approved pharmaceutical company to do so.
U.S. states with the death penalty therefore faced difficult choices on how to adapt to the lack of access to FDA-approved drugs for carrying out lethal injections. Some, like Utah, have considered the use of firing squads as a form of execution. Others have sought drugs from manufacturers not approved by the FDA. Arkansas relied on older stockpiles of the drugs, creating the pressure to carry out this month’s executions before the expiration deadline.
Last year, the Commonwealth of Virginia passed a law requiring that information about the manufacturers of the drugs used in the state’s lethal injections be kept secret from the public. The stated intent of the law, which was supported by both Democratic Governor Terry McAuliffe and the Republican-majority legislature, was to protect these manufacturers from harassment, but it is clear that the intent was also to protect the state from scrutiny over where it obtains the drugs.
In Arkansas, the state uses the drug midazolam as a replacement for sodium thiopental. Midazolam is the same drug used in the 2014 botched execution of Clayton Lockett. After the first drug was administered, Lockett writhed on his gurney, hacking and even speaking over several minutes, before dying of a heart attack. Complicating matters, Oklahoma had also passed a law similar to Virginia’s keeping the manufacturers of the drugs a secret. Lockett’s case has raised questions about the suitability of midazolam for use in lethal injections.
In Arkansas, the state also faced a legal challenge from the manufacturer of one of the drugs used in lethal injections, McKesson. The state had purchased vecuronium bromide, the second, paralytic drug used in lethal injections, from McKesson. But McKesson claimed that the state had done so under false pretenses by failing to disclose that the drug was to be used in executions, which is contrary to the corporation’s policy. Ultimately the courts ruled that McKesson’s policies created no legal obligations on the use of the drug by the State of Arkansas after the purchase had been made, but the state’s deception remains ethically troubling.
Catholic teaching on capital punishment is nuanced, recognizing that in principle the state has a right to punish the worst criminal offenders with death for the protection of society, but that in the contemporary world, “as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent,” to use Pope John Paul II’s words from Evangelium Vitae #56. Elsewhere I have argued that Catholic supporters of the death penalty rely on a misleading abstraction, by taking the hypothetical possibility of conditions under which capital punishment might be ethically permitted as a justification for its continued use in our own concrete reality in which those conditions do not apply. I think we can see something similar when we look at the typical arguments in favor of capital punishment in light of real life cases like those of Ledell Lee and Clayton Lockett.
One of the most powerful arguments in support of the death penalty is that justice demands a punishment appropriate to the severity of the most heinous crimes. Punishment serves not only the purpose of protecting society from the criminal, which could be done through life imprisonment, but also of retributive justice, reflecting a judgment on the crime itself. Others argue that the death penalty serves as a deterrent for potential criminals. These arguments, however, presume that the death penalty is being carried out in a legal and political system where the commitment to justice is robust and consistent. The death penalty, in this view, is a means toward the end of justice, and therefore itself ought to be carried out according to the canons of justice.
In our current situation it is evident that the reverse is the case, that capital punishment has become its own end, that the requirements of justice are being twisted and subverted for the sake of death. As Virginia’s Governor McAuliffe himself argued, the state’s law protecting the identity of drug manufacturers was necessary to prevent a moratorium on the death penalty, as if the relevant question is how to preserve the death penalty no matter the cost rather than whether it can be carried out in a way consistent with constitutional rights and public accountability.
The secrecy and deception exercised by states such as Virginia and Arkansas in carrying out the death penalty do not serve the cause of justice, which is after all a public matter requiring public scrutiny. As the journalist Radley Balko argues, even the use of lethal injection may be a form of deception. States adopted lethal injection supposedly as a more humane form of execution, but in reality it is favored “because it makes a state killing resemble a medical procedure. Not only doesn’t it weird us out, it’s almost comforting.” We use the techniques of healing to carry out killing to mask from view the real moral ramifications of what we are doing. But how can capital punishment be a clear moral statement of judgment on the crime if we cannot be honest about the fact that we are killing, let alone about where our tools for killing come from?
From what are we trying to hide? I think the answer is that all this deception, both self-deception and deception by the state, is meant to hide the ways our criminal justice system falls short of serving the purpose of real justice. Ledell Lee’s case is illustrative. During the initial trial in which he was convicted of murder, the judge in the case was carrying on an affair with the assistant prosecutor, and the two later married. When Lee appealed his conviction, his state-appointed attorney showed up to court drunk and was so disruptive that even the opposing attorneys complained. Last night the U.S. Supreme Court struck down an appeal asking for a DNA analysis of evidence using techniques unavailable at the time of his original trial but which may have revealed evidence of his innocence. Whether or not Lee is in fact innocent, it is clear that he was not treated with justice in the process that led to his execution. Even in a case such as Lockett’s where there is little doubt about guilt, the problems of our criminal justice system raise secret doubts about whether execution is truly an expression of justice, and we silence these doubts by avoiding the question of what ends capital punishment serves, making it its own end.
Pope Francis introduced the idea of the “throwaway culture” to show how disparate issues like consumerism, environmental destruction, poverty, abortion, and capital punishment are linked. Our culture has a way of “throwing away” people, things, and the Earth itself when they are no longer useful or convenient. The current practices surrounding the death penalty in the United States illustrate this throwaway culture. Rather than addressing the systematic injustices in our criminal justice system, let alone the deeper problems of poverty and racism that lie behind them, we resort to capital punishment, in a sense anesthetizing ourselves to the ramifications of what we are doing by medicalizing the process and shrouding it in secrecy, while at the same time justifying it in terms of justice.
Matthew A. Shadle is Associate Professor of Theology and Religious Studies at Marymount University in Arlington, Virginia. He has published The Origins of War: A Catholic Perspective (Georgetown, 2011). His work focuses on the development of Catholic social teaching and its intersection with both fundamental moral theology and the social sciences, with special focus on war and peace, the economy, and immigration.