Pain, Death, and the Law

Killing Me Softly: Capital Punishment and the Technologies for Taking Life

Killing Me Softly: Capital Punishment and the Technologies for Taking Life Austin Sarat There is no law that is not inscribed on bodies. Every law has a hold on the body.... Every power, including the power of law, is written first of all on the backs of its subjects. -Michel de Certeau (The Practice ofEveryday Life, 139-40) Make a good job of this. -William Kemmler, first person electrocuted in the United States, 1891 Do they feel anything? Do they hurt? Is there any pain? Very humane compared to what they've done to our children. The torture they've put our kids through. I think sometimes it's too easy. They ought to feel something. If it's fire burning all the way through their body or whatever. There ought to be some little sense of pain to it. -Mother of a murder victim on being shown the planned method of death by lethal injection of her child's killer People who wish to commit murder, they better not do it in the state of Florida because we may have a problem with our electric chair. -Robert Butterworth, attorney general, State of Florida, remarking on a malfunction that caused a fire during an electrocution Though our brother is on the rack ... our sense will never inform us of what he suffers.... By the imagination we place ourselves in his situation, we conceive ourselves enduring all the same torments, we enter as it were into his body, and become in some measure the same person with him. -Adam Smith (The Theory ofthe Moral Sentiments, 9) An earlier version of this essay appeared in Desmond Manderson, ed., Courting Death: The Law ofMortality (London: Pluto Press, 1999), as well as in When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001), reprinted with permission. 43 44 PAIN, DEATH, AND THE LAW In March 1997 newspapers all over the United States trumpeted the "botched" electrocution of Pedro Medina, a thirty-nine-year-old Cuban immigrant convicted and condemned for the stabbing of a Florida high school teacher.1 After the current was turned on, flames "leaped from the head" of the condemned, as one newspaper put it. "'It was horrible ," a witness was quoted as saying; "'a solid flame covered his whole head, from one side to the other. I had the impression of somebody being burned alive.'''2 Another newspaper wrote, "The electrocution of Pedro Medina on Tuesday was the stuff of nightmares and horror fiction novels and films. A foot-long blue and orange flame shot from the mask covering his head for about 10 seconds, filling the execution chamber with smoke and sickening witnesses with the odor of charred human flesh. One witness compared it to 'a burning alive.'''3 Yet news reports also conveyed the "reassuring" reaction of Dr. Belle Almojera, medical director at Florida State Prison, who said that before the apparatus caught fire Medina already had "lurched up in his seat and balled up his fists-the normal reaction to high voltage.... 'I saw no evidence of pain or suffering by the inmate throughout the entire process. In my professional opinion, he died a very quick, humane death.'''4 The Florida Supreme Court found that "Medina's brain was instantly and massively depolarized within milliseconds of the initial surge of electricity. He suffered no conscious pain."5 And others defended even this botched electrocution by noting that it "was much more humane than what was done to the victim."6 Despite these attempts to contain adverse public reaction, the Medina execution made headlines because it suggested that law's quest for a painless, and allegedly humane, technology of death was by no means complete. It did so, also, because it reminded us of the ferocity of the state's sovereign power over life itself. Yet these news stories also 1. See, for example, "Flames Erupt during Florida Execution: Gruesome Scene Renews Debate on Electrocutions," USA Today, March 26,1997, A3. 2. "Flames Erupt in Electric Chair's Death Jolt; Execution: Fire Shoots from Florida Man's Head, Renewing Capital Punishment Debate," Los Angeles Times, March 26, 1997, AI. 3. "Retire 'Chair,' Use Lethal Injection," Sun-Sentinel (Ft. Lauderdale), March 26, 1997, A22. 4. "Inmate Catches Fire in Florida Electric Chair: 'You Could Smell the Acrid Smoke,'" Houston Chronicle, March 26, 1997, A6. 5· See Jones v. Butterworth, 701 So. 2d 76, 77 (1997). 6. "Inmate Catches Fire," A6. [3.149.230.44...