TOMORROW the US Supreme Court is to hear arguments over the constitutionality of the lethal injection as presently administered. The claim has stayed executions from Florida to California and is based on the Eighth Amendment prohibition of cruel and unusual punishment. The hearing also coincides with the trial of Zacarias Moussaoui, the only person charged with direct responsibility for 9/11, where prosecutors are seeking the death penalty.

In the background to both cases are issues that have always been central to the death penalty debate. Stays of execution were granted in California in February after the state’s failure to find physicians willing to superintend the execution of Michael Morales. In the same state, recent polls show a gradual decline in public support for capital punishment. All of this follows the release in February of the 123rd inmate from death row because of innocence since 1976.

All these issues show that capital punishment is slowly moving towards its own extinction as an unworkable anachronism. The pace with which it does this can be accurately measured only with hindsight — but a glance at the past provides a good indication of how long it will be before the penalty is entirely abolished.

Charles Dickens, writing in The Times more than a century ago, believed: “Nothing that ingenuity could devise to be done in this city, in the same compass of time, could work such ruin as one public execution.” Behind this belief were the same fears that recur today. It was clear to Dickens, as well as several of his contemporaries, including William Makepeace Thackeray, that public hangings served only to martyr the condemned and lacked any deterring influence.

The unpredictable nature of death by hanging led to a revolution in American death chambers with the introduction of the electric chair in 1890. Billed as a humane progression from the barbarity of the noose, the chair spread throughout the US, with New Jersey, Virginia, both Carolinas and Kentucky adopting it within the decade. Soon after, soldiers leaving to fight the First World War found the added horror of comrades facing the firing squad as punishment for cowardice — a horror that the soldiers of the Second World War were relived of, thanks to a shift in attitudes to military discipline. The search for the perfect method continued in the US after the Great War with the introduction of lethal gas in the 1920s, followed in 1977 by lethal injection. As execution techniques were being refined in America, its abolition spread throughout the world. The UK abolished it in the 1960s, Canada in the 1970s and France in 1981; a trend culminating in complete abolition across Europe.

Today the US stands alone as the only Western country with capital punishment on its statute book — 37 states, the US military and the federal Government use lethal injection as a method of execution; Nebraska uses only electrocution. Hanging is still available but hasn’t been used since 1996. Electrocution is slowly working its way from the death chambers to the museum; described by the Florida Supreme Court as “a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber of Florida State Prison”.

The claim before the Supreme Court tomorrow centres on the three drugs used in lethal injection. The first, sodium thiopental, intended to anaesthetise the condemned, is claimed by defence counsel to merely cast a “chemical veil” over the pain. The prisoner is then left conscious but trapped in a paralysed body to endure the pain of suffocation and heart attack induced by the two drugs that follow. At the same time, the paralysis makes it impossible for those observing the execution to recognise the suffering.

The narrow grounds on which the court granted leave to appeal means there is no possibility of the method being declared unconstitutional. At most, the court’s decision will lead to the combination being declared unconstitutional. The 37 states will then have to find a new magic formula to be used on Moussaoui.

It is right that a man convicted of conspiring in the death of 3,000 New Yorkers should face the highest penalty offered by the criminal law. The law must, however, be objectively justified without the colouring of a world-changing day such as 9/11. At worst, executing Moussaoui would lead to his martyrdom, a loss of a potential intelligence source, reprisals from existing supporters and the recruiting of new ones. At best he would be forgotten.

Methods of execution have evolved from the gibbeting pole to the needle without one method proving flawless. Tinkering with the combination is simply to delay the inevitable. Arguments justifying the death penalty on the ground that it deters future offenders fall flat on their face in the terrorist context. Timothy McVeigh was executed in June 2001, just before the 9/11 attacks, for the Oklahoma bombing. It was one of the most publicised executions for a long time and had no demonstrable impact three months later. Executing Moussaoui will, therefore, be about vengeance and perceived retribution but the vengeance will be his and our retribution may follow.

The author is a barrister and lecturer in law at the BPP law school, Waterloo, London

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