Since the late 19th century in the United States, critical responses to the spectacle of pain in executions have continued to spur ardent calls for the improvement of killing technology. One of the most prolific legal theorists of capital punishment, Austin Sarat, has concisely referred to this history: “The movement from hanging to electrocution, from electrocution to the gas chamber, from gas to lethal injection, reads like someone’s version of the triumph of progress, with each new technique enthusiastically embraced as the latest and best way to kill without imposing pain.” Recent debates over the administration of midazolam and pentobarbital, and in what dosage, seamlessly integrate themselves into Sarat’s grim progress narrative.
The inexhaustible impulse to seek out less painful killing technologies puts a series of questions in sharp relief: What is, and should be, the role of pain in retributive justice? And how has the law come to rationalize the condemned’s experience of pain during an execution? While the Eighth Amendment stipulates the necessity of avoiding “cruel and unusual punishment,” in 1890 the Supreme Court decided this clause could mean that no method of execution should impose “something more than the mere extinguishment of life.” And then, in 1958, the court also determined that the amendment should reflect the “evolving standards of decency that mark the progress of a maturing society.”
If we were to consider the “standard of decency” in our society today, we would be pushed to ask: By what moral order have we continued to establish the “extinguishment of life” as something “mere,” and the pain of the condemned as excessive? In other words, how has the pain experienced during an execution become considered cruel and unconstitutional but not the very act of killing itself? We should dial back to older histories of law to tap into pain’s perennially vexed role in retributive theories of justice.