A stay of execution?

Is America getting over its love affair with the death penalty? Executions are declining, and now th

It was yet another example of America leading the world. Barbarous countries around the globe still put prisoners to death by hanging, garotting, firing squads, gassing or electrocution - which the US itself brought to the world in 1888, admittedly. But as soon as the US Supreme Court made its landmark 1976 ruling that executions were not "cruel and unusual punishments" that were therefore outlawed by the constitution's Eighth Amendment, state and federal authorities decided that they would circumvent legal roadblocks once and for all by bringing new levels of sophistication to the art of execution.

Thus the concept of "lethal injection", whereby a prisoner would supposedly die in a peaceful and even humane manner, was invented the following year. Now 98 per cent of executions are carried out by lethal injection, and of the 37 states that have the death penalty only one, Nebraska, still insists on putting its condemned prisoners to death in the electric chair. More routinely, Michael Richard - a 49-year-old man with an IQ of 64, who had been convicted of killing a nurse in 1986 - bequeathed 24 packages of instant soup mixes and a soap dish to his relatives before he was strapped down in the notorious Huntsville, Texas, death chamber on 25 September; the deadly fluids duly did their work and Richard was pronounced dead at 8.23pm.

I mention this pathetic but all-too typical case for several reasons. First, despite the presence of no fewer than 3,350 on death rows in America and the executions of 1,088 men and 11 women since 1976, it now looks likely that Richard will be the last man executed in America for many, many months to come - certainly for the longest moratorium since that of 1972-76.

The reason is that the US Supreme Court decided on the very day Richard died (coincidentally, I'm sure) to hold hearings next January in what will be another landmark death penalty case, that of Baze v Rees: two prisoners on death row in Kentucky are petitioning that lethal injection itself, not execution per se, is cruel and unusual punishment. The high court showed it meant business on 30 October, when it halted the execution of convicted murderer Earl W Berry - who was literally strapped down ready in a Mississippi death chamber - just 19 minutes before he was due to die.

The case before the nine-member court is much more narrow than that of 1976, but the verdict is unlikely to come before next summer. We can't expect any sensational decision from a court where four of the sitting judges were nominated by the Presidents Bush either, but their very willingness to accept the case reflects a subtle change of mood throughout America. Richard was only the 42nd prisoner to be executed this year, compared with 53 last year and 60 the year before; the peak, of 98, was reached in 1999.

The number of people sentenced to death has almost halved in the past decade, meanwhile, and the Supreme Court has already made two 21st-century milestone rulings: that neither juveniles nor the "mentally retarded" can be put to death (though Texas, which is way ahead in the execution league tables, apparently decided that Richard's IQ did not place him in that category).

America is still one of the world's Big Six when it comes to putting its citizens to death - along with China, Iran, Pakistan, Iraq and Sudan - but it no longer has quite the same zealous enthusiasm I remember from barely a decade ago. Gallup says that around 65 per cent of Americans still favour the death penalty, and only one of the 2008 presidential frontrunners has the courage to oppose it. But now a slim majority of the population say they would prefer life sentences without parole if that was an alternative to death.

The nation is also slowly waking up to the costs of maintaining the legal machinery of death, especially when people realise that only 0.3 per cent of murders results in an execution; a study found that New Jersey alone, which has not executed anybody since 1963, has spent $256m in such costs since 1983. Indeed, that very statistic has concentrated New Jersey minds so much that it will soon become the 14th state to abolish capital punishment.

DNA fingerprinting is also increasingly helping to exonerate people wrongly convicted of murder. This year a 50-year-old man who spent nearly half his life in prison after being convicted in Texas of raping a boy in 1982, was freed when genetic evidence irrefutably showed him to be innocent. Illinois, too, has freed more provably innocent people awaiting execution than it has actually put to death; as a result, it is one of three states shocked into, in effect, imposing an unofficial moratorium on capital punishment.

And lethal injections? It was not, as you might suppose, some blue-ribbon panel of experts on anaesthetic procedures who came up with the concoction of drugs now used almost everywhere in the US. The astonishing truth is that in 1977, Oklahoma was fearing it would have trouble with its electric chair, and so its medical examiner, Dr Jay Chapman - actually a forensic pathologist who had no expert knowledge on how to kill people and now acknowledges he did no research - volunteered to jot down some drugs he thought might do the trick.

Quite untroubled by the Hippocratic Oath, he quickly came up with the idea of having a dose of sodium thiopental flowing through the prisoner's vein's to put him to sleep first; then pancuronium bromide, to paralyse his system; and, finally, potassium chloride to stop his heart beating. Like sheep, more than 30 states adopted Chapman's death recipe themselves.

The problem is that it is not, by any means, as straightforward as it sounds. The American Veterinary Medical Association even issued guidelines in 2002 saying that the mix was unacceptable for putting dogs and cats, let alone humans, to sleep. It is hard, especially for medically untrained prison staff, to administer the right dose of sodium thiopental in the first place. There are numerous accounts of prisoners not actually knocked out by it, who are therefore fully conscious when they are completely paralysed by the dose of pancuronium bromide that soon follows; they are then unable to breathe but also incapable even of flicking their eyes to indicate their terrifying plight. Finally - and who can possibly say if this is true or not? - the potassium chloride supposedly produces an excruciating sense of burning in the veins if the prisoner is still conscious.

I wondered for years why executioners didn't simply first administer the kind of anaesthetic that put me into deep oblivion while an electric saw split my sternum open, perhaps in massive quantities and before the other drugs did their fatal work. Then the penny finally dropped.

It's as American as apple pie for small audiences to be assembled to watch an execution, and in many states even ordinary citizens can apply to be witnesses. The demand was so great that no fewer than 300 people watched the execution in 2001 of Timothy McVeigh, the Oklahoma bomber, via closed-circuit television. But if a conventional anaesthetic or huge dose of barbiturates was used to render the prisoner irrefutably unconscious, the spectacle would become much more distressing for people watching. Though deeply unconscious, the prisoner would twitch and moan, and also take longer to die.

Sanitised killing

Witnesses of electrocutions used to recoil at the sight of a prisoner's body heaving involuntarily with terrific force, the sound of horrible noises from his nose and mouth, and the smell of sizzling flesh intermingled with that of voided bowels and bladder; likewise, Arizona's attorney general vomited in 1992 after seeing a prisoner's demented last six minutes and 37 seconds in the state's gas chamber as he vainly struggled to avoid inhaling the cyanide fumes.

Hence the brilliant use of pancuronium bromide, the paralysing agent in Dr Chapman's diabolical brew, which comes in very handy to create the 21st-century illusion of a hi-tech, clinical and painless judicial killing. What a contrast with the terrible sights and sounds and smells of an electrocution or gassing. The only substantive difference, though, is that if today's executions are botched - as so many clearly have been - the use of modern medicine makes it impossible for a tortured prisoner to indicate what is happening. The illusion is complete.

Progress? The most we can expect from the Supreme Court's 2008 hearings is that the ingredients used in lethal injections will have to be changed. Yes, progress is slowly being made, but agonisingly so compared with practically all the rest of the western world. Tragically, America in 2008 will still be discussing not whether to kill - but how.

Andrew Stephen was appointed US Editor of the New Statesman in 2001, having been its Washington correspondent and weekly columnist since 1998. He is a regular contributor to BBC news programs and to The Sunday Times Magazine. He has also written for a variety of US newspapers including The New York Times Op-Ed pages. He came to the US in 1989 to be Washington Bureau Chief of The Observer and in 1992 was made Foreign Correspondent of the Year by the American Overseas Press Club for his coverage.

This article first appeared in the 26 November 2007 issue of the New Statesman, China