This article first appeared in the St. Louis Beacon, Jan. 31, 2011 - Illinois Gov. Patrick Quinn is taking his time deciding whether to sign a bill abolishing the death penalty in Illinois. Already, the delay has angered and frustrated many, from judges in murder trials to those on both sides of the death penalty debate.
But as Quinn pauses to reflect, and in the wake of Missouri Gov. Jay Nixon's decision to commute Richard Clay's death sentence, it is worthwhile to take stock of the national debate on the death penalty, one that is now taking place in surprising terms. It looks as if many decisions about the death penalty will be made on the basis of simple expediency: Whether we can afford it, and whether we have the means to do it.
We are no longer, as was hoped for by many in the 1970s, looking for a ringing Supreme Court decision to declare the death penalty cruel and unusual once and for all. The Supreme Court, at least in its most recent rulings, has preferred to take slow and measured steps that stop well short of abolition. The action, for the most part, is now in the legislative arena, and increasingly in the state legislatures.
That debate is being pulled by two pragmatic considerations: the cost of the penalty and the availability of certain drugs used to administer lethal injections. These are not, at least on the surface, considerations of grand moral principle. But they do reflect America's deep ambivalence about the death penalty, an ambivalence no poll can easily capture.
Consider the fact, now widely acknowledged, that the death penalty is actually quite expensive. It does not represent any manifest savings over life in prison and may even represent a net loss. Why? Of all cases in the criminal docket, death penalty cases involve appeal after appeal, and appeals are expensive and time consuming. The money spent in the court system can dwarf the amount of money it takes to hold a person in prison.
At the same time, many of us wouldn't have it any other way. If there is to be a death penalty, we want to make sure it goes to those who truly deserve death: those who have clearly committed the crime and have had the benefit of a fair trial.
But this creates a problem for those who would strongly advocate the death penalty. In times of national belt-tightening, money for death penalty appeals has to come from somewhere, and that somewhere includes spending on criminal justice in other areas (prisons and jails, police officers). Are we really better off pursuing death for a select few offenders, at the expense of the criminal justice system overall?
There is also the decreasing availability of sodium thiopental, an anesthetic used in lethal injections. An Italian company that makes the drug (and ironically has a plant in Illinois) has decided that it no longer wants it to be used in executions. The result has been a nationwide shortage of the drug, which death penalty proponents fear will delay executions. (The argument that this is foreign companies interfering with the right of states to execute invites the question of why U.S. companies haven't stepped in to meet the demand.)
This problem again goes to our ambivalence about the death penalty. Many Americans say they want the penalty, but many also want it to be humane and not a form of torture. That requires using drugs that may be hard to find, especially when companies have ethical problems with the use to which they are being put. The drug problem wouldn't arise if more states used firing squads. But those who advocate that are increasingly seen to be on the wrong side of history. Certainly it should come as cold comfort that some states are turning to an anesthetic that is commonly used to euthanize animals in administering the death penalty against humans.
Some moral revolutions don't come in one fell swoop; they come slowly. They don't always come ringing in terms of grand principle. Sometime certain evils are undone slowly, and by concerns that seem more ordinary than soaring. Such seems to be the case with the death penalty, which may, in the end, be undone by nothing more grandiose than our increasing ambivalence about it.
Chad Flanders teaches at Saint Louis University School of Law.