After Trump, isn’t it time for America to ditch the death penalty?

On December 9 2020, Brandon Bernard (pictured) was sitting in a special confinement unit in a federal prison in Indiana. He had been on death row for more than 20 years. A last-minute appeal for executive clemency was denied by the Supreme Court. By December 10, at 21:27 eastern time, he was dead. At 40, Bernard was the youngest person to be executed by the Federal Government in nearly 70 years.

He was given a lethal injection for his involvement in the murder of Todd and Stacie Bailey – a young Christian missionary couple from Iowa who were in Texas visiting friends. The incident occurred in June 1999, when Brandon, accompanied by four other teenagers, robbed the couple and forced them into the boot of their car near the Fort Hood military reservation in Killeen, central Texas. While in the boot they were shot by the then 19-year-old Christopher Vialva – who was later executed for his role in the murder. 

Bernard’s role was to set the car alight. Barely 18 at the time, he claimed to have acted out of peer pressure and many have argued he was the least culpable of the five involved. Although defence lawyers and independent investigators said the couple were “medically dead” before the fire, federal prosecutors testified that Stacie had soot in her airway and therefore died of smoke inhalation, contradicting Bernard’s statement that she was killed by the gunshot.

Four more executions are planned before Trump’s presidential term comes to an end on January 20, which would bring the total to 13. Trump’s supporters fervently cite his record as the “least warlike” President since World War Two. Should the remaining four executions go ahead, however, they will leave an indelible blood-stained mark on his presidency. He will be the proud owner of the morally reprehensible record of having overseen more federal executions than any President in more than a century.

There is nothing more certain than death. The curtain falls on the play that is one’s life. Death is the final act. At least those that commit suicide have a certain morbid “freedom” to decide on their own terms when they should choose to depart this world. With capital punishment, the state has the dubious honour of deciding the time a person is “put to death”. Camus wrote that capital punishment was “the most premeditated of murders”. The state also has the ignominious power to decide how that person should die.

Between 1976 and December 13, 2020, there have been 1,527 executions in the US: 1,347 by lethal injection, 163 electrocutions, 11 gas chamber deaths, 3 hangings and 3 by firing squad.

Terre Haute correctional facility in Indiana is the federal penitentiary where all on Death Row now go to die. The Hoosier State first used lethal injection in 1996 — supposedly because it is more humane than the other methods of shooting, hanging, electrifying and gassing employed by the 28 states that permit the death penalty. All these are enshrined in the Eighth Amendment to the Constitution; they pass the “cruel and unusual” test with alarming ease. A combination of drugs is used to facilitate death, beginning with a sedative: normally midazolam is given to sedate the inmate, then a shot of sodium pentothal that should induce unconsciousness. Followed by a drug to cessate respiration – usually pancuronium bromide. Finally, a shot of potassium chloride immobilises the heart. In some cases, when these aren’t all available, heavy opioids like hydromorphone are used.

A 2005 Lancet study revealed that in 43 per cent of lethal injection cases, the prisoner had an insufficient level of the drug to ensure unconsciousness. Something that was evident when Clayton Lockett was given the lethal injection in 2014 for the murder of a woman in 2000. Around a dozen people had come to watch, including the victim’s family and members of the press. The process is supposed to be swift and painless. After being given a “lethal dose” he thrashed around wildly, groaning and convulsing for 43 minutes before dying. By then, witnesses and reporters had vacated the room in horror and astonishment. It was only when Lockett suffered a massive heart attack was he pronounced dead. It is estimated that 3 per cent of executions are botched in this way.

In executing executions, each generation believes it improves upon the last. Named after its inventor, Joseph-Ignace Guillotin, the guillotine was proposed by the French physician to be the most humane method of execution. In 1789 he developed the decapitation device, believing it to be more civilised than its predecessor in France: the breaking wheel. The problem was that the “national razor”, as it came to be known, was so efficient as a killing machine that it was used to send a message to the enemies of the state. The guillotine became a symbol of supreme political power. During the “reign of terror”, some 17,000 political prisoners were put under the blade. When the death penalty was finally abolished in France, only in 1981, it was stated that the guillotine “expresses a totalitarian relationship between the citizen and the state”.

Although the guillotine sent a bloody message to its opponents, the protracted physical and mental torment unleashed on the condemned had gone. Those who lost their heads didn’t spend twenty years waiting.

Having a “date certain” for your death must wreak havoc upon your mental faculties. Dostoyevsky wrote in Crime and Punishment that if in the last hours before a man’s execution, he was given the opportunity to spend the rest of his life marooned on a rock, he would choose this over execution.

Capital punishment is an antiquated relic of the utmost cruelty. This is why most advanced countries have abolished the practice. After apartheid was abolished, the first act of the Constitutional Court of South Africa was to abolish the death penalty.

The US federal death penalty was ruled unconstitutional in 1972, following the Furman v Georgia ruling, temporarily commuting all death sentences to life imprisonment. It was reinstated in 1976 for a narrow range of offences. Prior to the Trump administration only three federal prisoners have been executed since it was reinstated, the most famous of whom was Timothy McVeigh – the Oklahoma bomber.

It was the infamous “Crime Bill” of 1994 – brought in during the Clinton presidency by none other than Joe Biden — that saw sixty new crimes added to the death penalty list. Crimes that suddenly appeared on the bill as new federal capital offences included kidnapping and car-jacking – the one that saw Brandon Bernard die.

Then there’s the case of exculpatory evidence. Due to the technological and scientific advances made in evidence collation, such as DNA, many on Death Row have been exonerated and released. Evidence suggests that 156 people have been found innocent and released since 1973.

Even staunch advocates of the death penalty surely believe it must be reserved for the most heinous of crimes. Yet across the globe, non-lethal crimes such as drug possession, burglary and even adultery have been punished by this most final of sentences.

There are hundreds of thousands of murderers and rapists in prisons throughout the US. By that logic, should we not execute all these people? The final decision rests with a jury, which must be unanimous. Except in Alabama. It is the only state that does not require a unanimous decision on matters of life and death.

Handing the state the power to decide when a life is over is immoral at best and terrifying at worst. It sets a horrifying precedent over who has the right to life: the individual or the state.

It must always be the individual.

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