The Needle and the Damage Done

It’s a sad thing when the jury gives the answer the Court is seeking. But it shows how civilized our country is when we struggle with something the rest of the world no longer needs to discuss, discussion having been rendered moot by the banning of the practice.

According to Amnesty International, the United States, together with China, Iran and Viet Nam account for 97 percent of all known executions that took place in 2004. In April and May the United States had three encounters with the death penalty. The amateurs came out best.

The first took place in the United States Supreme Court. On April 26 the Court struggled with the important question of whether administering the death penalty by lethal injection caused pain for the victim. It is a great civilization that wonders if killing someone is painful for the object of the exercise. We do not cut off heads or hang people in public forums. We try to make execution of the guilty as pleasant for them as is humanly possible.

In executing people by lethal injection a combination of drugs is used that, in Tennessee at least, may not be used when euthanizing animals, because the effect on the animal is considered painful and thus inhumane. On April 26 the court wrestled with the question of whether what was painful for animals could nonetheless reasonably be used on people in connection with a Florida execution. During oral argument, and with perfectly straight faces, the Justices considered the most humane way for a civilized society to kill the undesirables among them. Members of the court asked whether Florida had taken steps to make sure that the drugs were administered in the most humane and painless way possible

Justice Scalia, a poker player who calls a spade a spade, and is not concerned about killing people who deserve to be killed, trenchantly observed that hanging was not a “quick and easy way to go” although he stopped short of suggesting its reintroduction, notwithstanding the obvious entertainment value inherent in a public hanging.

While the court dealt with the abstract question of how to humanely kill, Joe Clark dealt with it on a more personal level. Mr. Clark killed a gas station clerk in Ohio back in 1984 and was sentenced to death by lethal injection. His execution took place on May 3, 2006. His execution proved to be a technical challenge. It took 90 minutes to get rid of him. It was his fault. Not that he struggled. He simply didn’t have a really good vein through which the death dealing liquids could be inserted.

Death’s ministers poked around his body for about 25 minutes until they located a compliant vein. The vein soon tired of its task as conduit and when the inmate lifted his head and announced he did not seem to be dying, the sluggard was abandoned in favor of a more compliant participant. The process was then resumed and Mr. Clark was dispatched. While the Court struggled with how state sponsored executioners should humanely kill their fellow man and the Ohio folks did it, a small group of amateurs showed an unexpected touch of humanity seemingly lacking in the others.

In a courthouse in Alexandria, Virginia, a group of 12 men and women had to decide whether to sentence someone to death for his involvement in the events of 9/11. Throughout his trial Zacarias Moussaoui displayed his contempt for them, for the victims and for the court system in which he was being tried. He did all in his power to make himself repugnant to the jurors and most of the rest of the country.

The jury found that Mr. Moussaoui had concealed his knowledge of Al Qaeda’s plans to fly planes into buildings. Had that information been disclosed, even an agency as incompetent as the FBI might have taken notice and done something about it. His failure to speak up is what qualified him, as the expression goes, for the death penalty. The jury declined to impose it.

Mary Jo White, the U.S. attorney in Manhattan had co-signed Mr. Moussaoui’s indictment. Though disappointed in the jury’s verdict she said: “It sends a very helpful message to the rest of the world about the American judicial system. Fairness is paramount. It shows that in a highly charged case such as this, an American jury could reach this verdict.”

Others can judge for themselves what it says to the rest of the world when the highest court in the land spends time deciding on the most humane method of killing its citizens as retribution for crimes they have committed and executioners in Ohio spend 90 minutes killing one of its citizens.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Visit his website:




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