America can sentence prisoners to die, but we can’t guarantee we can kill them. Last month, Alabama spent three hours attempting to execute Alan Eugene Miller before his death warrant expired for the day. They failed. Two months earlier, they failed Joe Nathan James Jr. differently when the state’s executioners used a knife to look for the vein they couldn’t find with a needle.
For years, the moral issue of the death penalty has been contested on practical grounds, leaving us with a system worse than a clear victory for either side. While other nations either permit or outlaw executions, America has expressed its mixed feelings by allowing states to attempt executions while hamstringing them on how.
This mess is the result of years of deliberate attempts to chip away at the feasibility of the death penalty. Without a clear path to outlaw executions in Congress or at the Supreme Court, the anti-death penalty movement has focused on making them impossible to carry out. Activists have targeted the suppliers of lethal drugs, putting pressure on companies to stop selling their drugs to states that will use them to kill, and asking European countries that have banned the death penalty to place export restrictions on the drugs.
They have won a Pyrrhic victory with these tactics. Any veterinarian can put an injured dog to sleep, and several states have authorized doctor-assisted suicide that is intended to provide a predictable, painless death. But for the people we condemn to death, the killings are improvised and slapdash.
States experiment with new drug cocktails, try to keep their sources secret and schedule executions in a rush to beat the expiration dates for the drugs they’ve managed to find. When drugs are unavailable, states consider older methods of executions — firing squad, gas chamber or electric chair. There are enough places to buy bullets to keep activists from cutting off supply for firing squads. The electric chair has a different chokepoint — the sole engineer who previously maintained execution devices across the country has retired.
These careful attempts to keep the fight a matter of practicalities, when the moral victory seems out of reach, remind me of abortion opponents’ pivot to TRAP laws (targeted regulation of abortion providers) to try to stop abortion.
While the Supreme Court placed direct restrictions on abortion out of reach, some anti-abortion advocates tried to shut down clinics with nakedly pretextual arguments. But it is as impossible to imagine anti-abortion supporters being relieved that an abortion clinic had found the funds to widen its hallways and comply with a TRAP law as it is to imagine anti-death penalty activists being pleased if a state found a reliable, readily available and provably painless way to kill.
Abortion opponents won a double victory in Dobbs. Removing the restrictions of Roe allowed states with anti-abortion majorities to implement trigger laws. But abortion opponents were also freed to make the case against abortion directly to their fellow citizens. A first attempt failed in Kansas; Michigan will be next to consider an abortion-access referendum. Meanwhile, it’s clear that a number of Republican politicians miss the safety that the Supreme Court offered them — they’ve become mealy mouthed on restrictions once they could really have the force of law.
It’s an improvement to rely on the democratic process, rather than litigating the exact boundaries of an undue burden.
We’re a healthier polity when we contest divisive moral issues as moral issues instead of trying to win a game of regulatory chess. It is better to persuade our neighbors of a moral cause than to ignore them and hope for the favor of nine justices or the rules-making agencies in our ever-growing administrative state.
Similarly, death-penalty opponents can’t win a lasting victory without persuading more Americans. About 3 in 5 Americans support lethal punishment for murder, even though majorities also concede that the death penalty is not a powerful deterrent and that some innocent people may be executed. The fight isn’t just about the facts, but about the moral weight of those facts.
For the present, our divided views have returned us, in effect, to a form of punishment much older than lethal injection or the electric chair. In the late 1700s, some state governments condemned criminals to simulated hangings. A person who had committed a capital crime would be sentenced to stand on the gallows for an hour, with a noose around his neck, in full view of his neighbors.
These mock executions were intended to meld justice and mercy. The condemned were judged to have deserved death, but were deliberately spared it. The hour spent in the snare of the noose was intended to communicate the gravity of the crime, both to the crowd and to the criminal. It was the respect that clemency paid to culpability.
But Miller’s sham execution on Sept. 22 was not planned and was not public. Alabama’s bungling of his attempted execution is the result of a nation that doesn’t agree on what either justice or mercy consists of. And the gaps of judgment in our pluralistic polity became an open wound on the arm of James on July 28.
Life-and-death issues have to be contested on moral terms. Trying to launder moral questions into ones of empirical fact or feasibility of logistics lead to the cruelty and confusion on display in Alabama. We can’t paper over the fractures in our nation indefinitely. We have to work to persuade each other of what we really believe.
Leah Libresco Sargeant is the author of “Arriving at Amen” and “Building the Benedict Option.” She runs the substack Other Feminisms, focused on the dignity of interdependence.