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Commentary: Bring back the Guillotine?

This article first appeared in the St. Louis Beacon, Sept. 22, 2009 - Last Tuesday, Ohio corrections officials tried to execute Romell Brown, convicted of raping and murdering a 14 year old. They tried, but they didn’t succeed.

Brown, for two hours, was pricked more than 18 times while the officials sought a “workable vein” in which to insert a shunt so Brown could be lethally injected. According to reports, Brown assisted the officials by “shifting positions, rubbing his arm and pointing out possible usable veins.” Also (according to reports) during the ordeal, Brown covered his face with his hands and cried.

At one point, a member of the corrections team made a statement that it was “hard on everyone.” Interviewed later, the director of corrections in Ohio said that his team was getting “frustrated.” The execution, originally rescheduled for this week, has been indefinitely stayed by a federal district court order.

In states that have the death penalty, of which Missouri is one, botched executions don’t happen often, but when they do happen, the bring home the ugly truth about the death penalty: that it actually involves killing someone. And no way of death, not hanging, not the gas chamber, not the electric chair, not the firing squad (all methods used in states which have the death penalty), and not even “safe” and “painless” lethal objection can avoid being messy and awful and terrible.

Brown’s lawyers have been busy filing new motions in his case. Their argument? Trying to execute someone twice, especially when the first try involved needle prick after needle prick, is cruel and unusual and violates the Constitution.

A similar claim was made over 50 years ago, in the 1940s, when Willie Francis was strapped into an electric chair and the executioner pulled the switch. An electric current went through Francis, but not enough to kill him. Francis lost his appeal, but it was a close vote.

The U.S. Supreme Court held, 5 votes to 4, that the “unforeseeable accident” of the chair short-circuiting didn’t “add an element of cruelty to [Francis’s] subsequent execution.” The dissenters asked, incredulously, if one botched execution wasn’t enough, “how many deliberate and intentional reapplications of electric current does it take to produce a cruel, unusual, and unconstitutional punishment?” In other words, how many times can you screw up an execution before it becomes torture?

Supporters of the death penalty in our state might do well to ask themselves the same questions. If they think that someone, say Reggie Clemons (whose June 17 execution was mercifully postponed), really deserves the death penalty, could they live with an execution that was botched, botched again, and then botched a third time? Or would this cross the line between a just punishment and torture?

Such a question forces the issue of whether we as a people are really comfortable with the death penalty, and to what lengths we’ll go to kill somebody. It removes debates about the death penalty from abstract questions of deterrence and retributive justice and brings them into the real world.

The guillotine, remember, was introduced as a humanitarian reform: it would be quick and painless. And no botched executions! But we now look at the guillotine as part of a benighted age. Perhaps someday we will see lethal injections that way, too.

Romell Brown in Ohio and Reggie Clemons in Missouri can only hope that we come to that realization sooner rather than later.

Chad Flanders teaches criminal law at St. Louis University.