Capital Punishment: It Could be Worse

Posted on February 3, 2024 by Brian H. Gill
Trial broadside: 'A Full and Correct Account of the Confession and Execution of John Pegsworth: Who was Executed this Morning for the Wilful Murder of Mr. John Holiday Ready, Tailor, of Ratcliff Highway, St. George's, East'. (ca. 1837) via Harvard Law School Exhibits, used w/o permission
Spectators and vendors at John Pegsworth’s execution. (1837) Detail of trial broadside.

It seems that, no matter how bad things are: they could be worse.

Take Alabama’s recent execution of a Mr. Smith, for example.

There’s been discussion of whether or not using nitrogen gas was okay, along with the ongoing capital punishment debate.

But at least the State of Alabama didn’t defray expenses by livecasting the execution: despite pay-per-view being a well-established part of our society.

I’ll be talking about capital punishment this week: along with Hammurabi’s laws, the breaking wheel, and a trend that might be good news.

Death Sentences: An Ancient Practice

Pieter Brueghel the Elder's 'The Triumph of Death'; detail showing shipwrecks, a desolate landscape, marching skeletons, a hanging skeleton and breaking wheels. (ca. 1562)
Detail, Pieter Brueghel the Elder’s ‘”The Triumph of Death”, with breaking wheels at right. (ca. 1562)

Capital punishment has been around for a long time.

Some 3,700 years back, the Code of Hammurabi said that folks who accuse others of capital crimes, but couldn’t prove it, “shall be put to death”.

Other capital crimes included giving false testimony in a capital case, or not being able to prove that testimony was true; several sorts of theft, purchasing stolen property; and lying about accusations of stolen property.

Non-lethal sanctions under Hammurabi included removal of fingers or ears, but the only specified form of execution mentioned was impalement.

I don’t think my country’s laws are perfect. But I don’t yearn for the days folks like Hammurabi were writing their law codes.

Fast-forward a few millennia.

Persians, Carthaginians, and Macedonians introduced Romans to crucifixion as an execution technique. Maybe one of them developed it, or maybe they picked the idea up from someone else.

Scaphism, a particularly unpleasant sort of execution by nibbling vermin, may or may not have been a Persian specialty.

Plutarch, a Greek who became a Roman citizen, said it was something Persians did. Considering Persian-Roman relations, I’ll take the claim with a grain of salt.1

The Breaking Wheel

Pieter Brueghel the Elder's 'The Triumph of Death', detail. (ca. 1562)Around the time St. Columba set up an abbey on Iona, folks in Europe apparently thought particularly heinous crimes warranted death on the breaking wheel.

Using a breaking wheel, executioners could kill someone quickly, slowly, or very slowly. Some subjects lasted three or four days. One took nine days to die.

I don’t know when folks started wondering about death by breaking wheel, but one region after another dropped it.

By the mid-19th century, the breaking wheel was history. Europe’s public executions were on their way out, too. They peaked around 1600, along with literal witch hunts. I strongly suspect that religion-themed propaganda for Europe’s turf wars helped stoke those fires.

Interestingly, we don’t call capital punishment judicial homicide anymore. Maybe because it sounds too much like judicial murder, a subset of wrongful execution.2 And that’s another topic. Almost.

But We’ve Always Done It This Way

The Aristotelian Constitution of Athens, only extant copy of the nearly complete text. Currently at the British Library
The British Library’s Copy of “Constitution of the Athenians”, found in a garbage dump.

If you google “we’ve always done it this way”, you’ll probably get links to articles, posts and the occasional video, saying or implying that it’s “the most dangerous phrase in business”. I did, at any rate. Your experience may vary.

I was going somewhere with this. Let me think. Capital punishment. Death by nitrogen. Hammurabi’s law code, Plutarch, the breaking wheel. Right.

We know about how folks lived, and the laws they lived with, because we’ve got written records from the times they lived in. Sometimes.

The Sachsenspiegel, for example, says that someone who commits murder, or arson that resulted in fatalities, gets — or, rather, got — killed on a breaking wheel.

The original Sachsenspiegel was called the Sassen Speyghel, and either way it means “Saxon Mirror”.

I gather that officials in the Holy Roman Empire used the Sachsenspiegel as a reference, when they needed to know what folks in their territory saw as good legal process. I was going to talk about “customary law”, but this has been another one of those weeks.

So I’ll skip lightly over the idea that what’s legal and/or proper depends at least partly on what folks have ‘always been doing’.

Anyway, We’ve got a pretty good handle on what was considered legal in Europe over the last millennium, because we’ve still got records like the Sachsenspiegel from that period.

Well, some records. Stuff gets lost as centuries roll by.

That’s why documents like the Codes of Hammurabi and Ur-Nammu are so important for those of us trying to sort out what was happening back then. They show us at least part of Sumerian and Babylonian legal systems.3

I think we’ve learned a bit since then.

Statistics, a Little History, and Science

Amnesty International/BBC News: countries with the most executions in 2022.
Note: total (estimated, in China’s case) numbers, not adjusted for population.

Considering that something like 334,000,000 folks call my country home, having only 18 legal executions in 2022 is a pretty low number.

We’re number five in that list, but I’m not sure we could be called a world leader in the criminal-killing category.

And, although on the whole I like being an American, and want my country to be outstanding: I can’t say that I mind America lagging behind China and Iran in executions.

Some of what I say next may intersect the 2024 presidential plebiscitary pandemonium, so I’d better start with a disclaimer.

I’m not “political”.

Not in the sense that I’ll try convincing you that one candidate or party is in league with Satan, corporate interests, and an international cabal that keeps sending someone to take your parking spot.

By the same token, I won’t claim God or a panel of experts is 100 percent behind someone or something that’s on this year’s ballots.

I do, however, think that human life matters. Even when it’s the life of someone who has committed egregious acts.

Okay. Enough of that.

I’ll take a very quick look at the decisions and science involved last month’s “nitrogen gas” execution, then talk about some numbers.

Nitrogen Asphyxiation: Bad News, Good News

Amnesty International/BBC News: countries which have 'persistently' killed criminals, 2018-2022.
Top persistent executors of malefactors, 2018-2022.

Three American states — Alabama, Mississippi and Oklahoma — say that killing a prisoner with nitrogen gas is okay. Some of Ohio’s leadership think that state should follow suit.

I gather that some lawmakers think there are crimes so “heinous” that killing the perpetrator is a good idea. But, oddly enough, nitrogen gas asphyxiation isn’t used because it’s a particularly nasty way to go.

A little biology 101.

We need a steady supply of oxygen, or we stop living.

There’s been considerable research into how long someone can think straight, and survive, with little to no oxygen. That’s partly because aircraft routinely fly where the air gets thin.

Turns out that if a pilot climbs to 18,000 feet without cabin pressurization, he or she has maybe 20 to 30 minutes before oxygen deprivation becomes an issue. A blowout at that altitude would give maybe 10 to 15 minutes.

The “time of useful consciousness” goes down to something like six to eight seconds in low Earth orbit. We think.

Nitrogen, at normal pressures, doesn’t hurt us, but it’s not the oxygen we need to keep living. I gather that a few deep breaths of pure nitrogen gives us about a minute of consciousness — maybe a few seconds — before our brain started shutting down.

The bad news is that, although our bodies have an ‘excess carbon dioxide’ alarm, lack of oxygen by itself won’t push our panic button.

Good news is the same thing. After several seconds to a minute of breathing pure nitrogen, our vision would go offline, we’d become unconscious, maybe have convulsions; and then our heart would stop.4 But our internal warning systems wouldn’t be screaming at us.

Compared to the breaking wheel, it’s a humane way of killing folks who break the rules.

Excessive Bail, Excessive Fines, Cruel and Unusual Punishment

Flag of the United States of America.Vermont finally ratified the United States Constitution in 1791.

There’s a story behind that, but it’s a can of worms I’ll ignore this week.

A whole bunch of folks thought the Constitution needed work, so by 1791 they’d more-or-less agreed on 10 amendments. We call those our “Bill of Rights”. They were ratified in 1791, too; and we’ve been arguing about them ever since.

The Eighth Amendment, AKA Amendment VIII, protects us against official bullying.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
(Eighth Amendment, Constitution Annotated, congress.gov)

Various folks have defined their version of what “cruel and unusual punishments” means. But to date, we don’t have a consensus opinion. Looking at the airborne verbal fewmets splatting into my news feed, I don’t think we’ll agree on one any time soon.

Where capital punishment is concerned, I think part of the problem is that whether it involves death by hanging, shooting, stoning, lethal injection, or something else: the key word is death.5 And there arguably isn’t a pleasant way to kill someone.

Graphs and Charts, Numbers and — Maybe — a Trend

Amnesty International/BBC News: number of executions per year, worldwide, not counting China, 1985-2022.
Executions per year, 1985-2022, not counting China’s contribution.
Death Penalty Information Centre/BBC News: United States executions per year, 2018-2022.
United States: number of executions per year, 1983-2023.

I appreciate the way BBC News uses graphs and charts. But I’d appreciate it more, in these cases, if they’d shown executions per population unit. Like, say, the number of executions per 1,000 people per year.

That’s not what they did, though. So I’ll just note executions peaked, globally, in the late 1980s and again in 2015. And that American executions were on an upward trend at least from 1983 to 1999, then fell from 1999 to 2008: blipped up, then kept sliding down.

I don’t know what made 1999 a bumper year for American executions.

I could say that it was the 1998 elections. Or I could turn it around, saying that the 1998 elections went the way they did because of the rising number of executions.

For that matter, I could give the 1999 Oklahoma tornado outbreak credit for causing executions that year.

Or claim that the storms were divine retribution for the election results. Or the Almighty’s response to “A Bug’s Life” by Pixar.6

But I won’t. As I see it, there are far too many folks making crazy claims. And that’s yet another topic.

The more-or-less steady decline in American executions from 1999 to 2021 looks like a trend: not a statistical hiccup. Particularly since the raw numbers have been decreasing, while America’s population has been increasing.

Growth Curves: Executions Go Down as Population Goes Up

Demmo, Conscious' chart: world population in billions, 1950-2017.
World population, 1950-2017.
Wikideas1's chart: United States of America population in millions, 1950-2021.
United States population, 1950-2021.

The Great Famine of 1315-1317 and the Black Death left 370,000,000 survivors, globally. World population has been growing ever since. Right now, I have a bit upwards of 8,000,000,000 living neighbors.

Growth curves on those two population growth charts aren’t quite straight. But they’re not the exponential curves I’d see in “population explosion” articles, a half-century back.

I talked about an 18th century English gentleman’s concerns regarding “the lower classes of people”, math, and assumptions, back in 2018; and that’s yet again another topic.

A point I think matters is that the number of executions has been going down in my country, on average, for two decades — while the population has been going up.7

I’m pretty sure that executions haven’t gone down because population has gone up. But I don’t have nearly enough information to know what’s behind the decrease.

Whatever the cause, I’ll see fewer executions as good news. Maybe my country’s powers that be are developing an appreciation for human life. That’d be nice.

Acting As If Human Life Matters

Philippe de Champaigne's 'Still-Life with a Skull', a vanitas painting. (c. 1671) left to right: life, death, and time.Last month’s execution of a Mr. Smith probably wasn’t wrong, legally.

There seems little doubt that he had been paid to help kill someone: which, in this case, was illegal.

The murder led to three more deaths — the person who paid for the killing committed suicide, two of the killers were executed. Four more deaths, including the killer who died in prison.

The person who paid for the murder had a familiar motive. He’d been married. He later told his sons that he was having an affair, which was why he paid to have his wife killed. Then he killed himself.

One of the few bright spots I see in the mess that the sons have apparently forgiven the hirelings who killed their mother.8

Responsibility and Dignity: For Everyone

The Atlanta Georgian: April 29, 1913. 'Police Have the Strangler' headline, a pre-trial announcement that Leo Frank had murdered Mary Phagan.I’ve talked about why I think that life matters and murder is a bad idea before, recently: so here’s a quick summary.

Human life is sacred, a gift from God. That’s every human life, each human life: no matter how young or old, healthy or sick we are. That’s one reason why suicide is a really bad idea. I have no authority to end my own life. (Catechism of the Catholic Church, 2258-2317)

Murder, deliberately killing an innocent person, is wrong for pretty much the same reason.

Here’s where it gets interesting. Or maybe irksome is the word.

Deciding to kill an innocent person is wrong. But it doesn’t make the killer not-human.

No matter what we do, what we believe, or where we live, we’re all obliged to “to do what is good and avoid what is evil”. And, like it or not, we’re all made “in the image and likeness of God.” Respecting “the transcendent dignity of man” may be inconvenient, and it’s often not easy, but it’s part of my faith. (Catechism, 360, 1700-1706, 1928-1942)

So is remembering that responsibility and justice matter.

But, although justice is a cardinal virtue, vengeance is not. (Deuteronomy 32:35; Sirach 27:27–28; Romans 12:19; Hebrews 10:30–31; Catechism, 1807, 2262)

So no matter how much I might feel like getting even with someone — yeah. I’d better move along.

“…An Increasing Awareness….”

Claes Jansz Visscher's Gunpowder plot executions etching, detail. (1606)
English justice, 1606: public vivisection after the Gunpowder Treason Plot.

Sound and fury has died down, in my social media and news feeds at any rate, from a change in the Catechism of the Catholic Church.

Until August of 2018, the death penalty was recognized as something that might be okay: for authorities who were so desperately hard-up that their only option was to kill prisoners who might otherwise hurt or kill others.

That was then. Now, since I’m a Catholic, working for an end to capital punishment is on my to-do list.

Catechism of the Catholic Church, 2267, prior to August 2018

“Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against an unjust aggressor.

“If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.

“Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm — without definitively taking away from him the possibility of redeeming himself — the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically non-existent.’†”
(†Pope St. John Paul II, Encyclical Evangelium vitae 56)

Catechism of the Catholic Church, 2267, after August 2018

“Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

“Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

“Consequently, the Church teaches, in the light of the Gospel, that ‘the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person’,‡ and she works with determination for its abolition worldwide.”
(‡ Francis, Address to Participants in the Meeting organized by the Pontifical Council for the Promotion of the New Evangelization, 11 October 2017: L’Osservatore Romano, 13 October 2017, 5.)

Not that there’s much I can do on a global, national, or state level. I’m just some guy living in central Minnesota.

But I can suggest that human life matters. Even when it’s the life of someone who has behaved very badly.

And that’s a whole mess of other topics.

Assorted angles, attitudes, and assumptions:

1 Ancient history:

2 Not-so-ancient history:

3 More than you need, or may want, to know about:

4 Science and a current issue:

5 A constitution and a continuing controversy:

6 Events and a movie:

7 Life, death, math, and (sometimes) making sense:

8 Societal snapshots of a sort:

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About Brian H. Gill

I was born in 1951. I'm a husband, father and grandfather. One of the kids graduated from college in December, 2008, and is helping her husband run businesses and raise my granddaughter; another is a cartoonist and artist; #3 daughter is a writer; my son is developing a digital game with #3 and #1 daughters. I'm also a writer and artist.
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4 Responses to Capital Punishment: It Could be Worse

  1. The Overlord Bear says:
    February 11, 2024 at 12:19

    This gets me thinking of “crime or mental illness” arguments too. I know you’ve written about mental health before, Mr. Gill, but have you written about the sort that are popularly considered criminal before? I’m now curious about your takes on those, see.

    Reply
    • Brian H. Gill says:
      February 12, 2024 at 19:11

      The closest I’ve come to discussing mental health, criminal behavior, and how folks perceive ‘criminal insanity’ is probably back in 2017: “Disorders, Decisions” > Mass Murder. ( https://brendans-island.com/catholic-citizen/disorders-decisions/#mass )(that post’s links to outside sources may no longer work, by the way)

      Back then, I was thinking more about a disturbing — to me — number of news items that linked particular psychiatric disorders to mass murder.

      Happily, word got around that not all folks dealing with what’s now (I think) called ASD/Autism Spectrum Disorders are mass murderers who haven’t started killing yet.

      About my views of mental disorders and criminal acts —

      First, I think that what is right and ethical is the same for everyone: rich or poor, crazy or not, member of an exclusive club or on that club’s staff. What is possible for an individual depends on that individual’s abilities and position in society, among other things.

      The extent to which what is ethical and what is legal overlap: that’s a can of worms for another time.

      Arguably, no person who is “sane” by many standards would commit a crime: particularly a violent crime. That discussion quickly gets into matters of free will and humanity’s bad start, and that’s a mess of other topics.

      Then there’s the “insanity defense”.

      The English-language Wikipedia page focuses heavily on United States and English law: understandably, I think, considering that page’s language. The subject is complicated, putting it mildly.

      My understanding, as a non-lawyer, is that my country’s “insanity defense” refers to the idea that someone who is —

      * Incapable of telling the difference between legal and illegal acts
      * Unable to restrain him- or her-self from committing such acts
      * Not able to assist in his or her legal defense
      * Any combination of the above

      — can’t be found guilty and face legal consequences of such acts.

      I gather that the “insanity defense” isn’t nearly as common as scuttlebutt might make it seem.

      I believe that assertion, since consequences of using that defense could and very likely would be severe. Possibly more severe than acknowledging guilt.

      Good question and points – – – thanks for asking.

      Reply
      • The Overlord Bear says:
        February 17, 2024 at 16:28

        You’re very welcome, and thanks very much for the response, Mr. Gill. I’m reminded of Christ asking the Father to forgive us because we don’t know what we’re doing. Also, the idea of the “insanity defense” being rare reminds me of my views on asserting my own mental issues as someone who is on a higher-functioning level and has family who is on a lower-functioning level.

        Reply

Thanks for taking time to comment!