Posted by Austin Sarat on Wed Oct 30 2013
On September 28, 1900, the State of North Carolina hanged Art Kinsauls for a murder committed in Sampson County. Born in that county in 1865, Kinsauls lived there his entire life and married a local girl, Posunnie Gibsy Bass, in 1896. Even though Art weighed only 110 pounds, he was said to be “tough as iron.” He had the unfortunate habit of getting into violent arguments and carried on a long running feud with John C. Herring, his neighbor. One night when he was in Art Vann’s Store at Beaman’s Crossroad an argument began and then a fight broke out. “Kinsauls reached into the meat box and got a sharp butcher knife and stabbed young Herring to such an extent that he died during the night.”
Kinsauls was arrested a few days after Herring’s death and brought to trial in October of 1899, Kinsauls was found guilty of murder and sentenced to hang. On the surface at least, there was nothing remarkable about North Carolina’s plan for the Kinsauls execution. Hanging had been the primary method of execution in the United States since the founding of the American colonies.
Between his sentencing and his execution Kinsauls tried to kill himself twice, first with an overdose of sleeping pills and later by using a tin lid to cut his throat. On the day of the hanging, hundreds of people traveled from all over the county to witness it. The gallows was erected near the jail where Kinsauls had originally been held. As in all its executions, Sampson County used a stepladder as its gallows, but it failed to do its job. The drop height proved insufficient to break the condemned’s neck. With Kinsauls suspended at the end of the rope, the attending physician quickly determined that he was still alive. Undaunted by the failure of their first execution attempt, officials cut him down, forced him up the ladder again, and repeated the drop. This time the execution succeeded and Kinsauls died. His was the last public hanging in Sampson County.
Almost a century later, in March 1997, American newspapers carried stories of another botched execution—the electrocution of Pedro Medina, a 39-year-old Cuban immigrant convicted and condemned for stabbing a Florida high school teacher to death. After the current was turned on, as one newspaper put it, flames “leaped from the head” of the condemned. “‘It was horrible,” a witness was quoted as saying, “a solid flame covered his whole head, from one side to the other. I had the impression of somebody being burned alive.” Another reporter wrote, “The electrocution of Pedro Medina on Tuesday was the stuff of nightmares and horror fiction novels and films. A foot-long blue and orange flame shot from the mask covering his head for about 10 seconds, filling the execution chamber with smoke and sickening witnesses with the odor of charred human flesh.”
Botched executions, like those of Kinsauls and Medina, have been and remain an important though generally neglected part of the story of capital punishment in the United States. They are neglected, in part, because of an increased focus on the problem of innocence and unreliability in the death penalty system. So powerful has this problem been in reorienting America’s thinking about the death penalty that, over the course of the last decade, both death sentences and executions have fallen dramatically. We now impose fewer death sentences and execute fewer people than at any time in a quarter century. In the rush of justifiable concern about the fate of innocent people who are condemned to death, abolitionists and others tend to forget, or to downplay, the fate of the guilty. Focusing on botched executions reminds us that those people have not fared well.
From the beginning, American execution practices have been designed to differentiate law’s violence from violence outside the law–to sharply set capital punishment apart from the crimes it is thought to condemn. This has been especially true in the twentieth century, when enormous efforts were made to put people to death quietly, invisibly, and bureaucratically. The course of the last century is littered with various technologies–hanging, firing squad, electrocution, the gas chamber, lethal injection–used in a continuing effort to find an apparently humane means by which the state could take life. Each technology was thought to be a reliable way to move us from life to death swiftly and painlessly—to ensure that execution is nothing more than “…the mere extinguishment of life.”
But why should the state care about the suffering of those it puts to death? Painful death might be both more just and more effective as a deterrent than a death that is quick, quiet, and tranquil. Because justice would seem to demand equivalence between pain inflicted in the crime and the pain experienced as part of the punishment, there is something unsettling and paradoxical about the state’s constant search for a painless way of killing those who kill. But even as capital punishment seeks to do justice and/or satisfy the public desire for vengeance, the state has countervailing concerns. It must distinguish execution from the acts to which it is a supposedly just response. The state must also find ways of killing in a manner that does not allow the condemned to become an object of pity, or to appropriate the status of the victim. Technology mediates between the state and death by masking physical pain and allowing citizens to imagine that execution is clean, efficient, and painless.
Legal scholar Alan Hyde argues that the requirement that the state kill humanely “follows a common pattern in which the humanistic, sentimentalized body in pain emerges as a site of empathy and identification…” in the 19th and 20th centuries. Sentimentalizing the body of the condemned establishes, Hyde notes, a bridge between the criminal and the public. The criminal, no matter how horrific his deeds, is like us in his body’s most basic “amenability to feeling.”
The concern that punishment not inflict physical pain and the empathy which it enables and expresses, Hyde observes, “lies behind the curious search in American legal history for painless methods of execution.” In an endlessly repeating ritual, he says, “electrocution, gas chambers, lethal injections are each introduced with tremendous fanfare as a painless form of death, until each is revealed to promote its own kind of suffering on the way to death.” Yet, as Hyde himself recognizes, execution marks the limits of empathy, reminding citizens of the ultimate disconnection between themselves and the condemned, a disconnection that seeks to operate at the moral level.
Thus the problem of botched executions and the search for painless death might be better understood as one way of keeping simplifying, sentimental narratives of criminal and victim intact by not allowing the condemned to assume the status of victims of outmoded technologies of death. Law imposes on sovereignty the requirement that no matter how heinous the crime, or how reprehensible the criminal, we do not do death as death has been done by those we punish. We give them a kinder, gentler death than they deserve to mark a boundary between “civilized” and “savage,” rather than to establish a connection between citizens and murderers. We kill humanely not out of concern for the condemned but rather to vividly establish a hierarchy between the law-abiding and the lawless. It may be death we are doing, but it is death whose savagery law insists it can, and will, control.
When executions go wrong, as they do about 3% of the time, they signal a break in the ritualization and routinization of state killing. Botched executions would seem to complicate that effort and to turn executions into the kind of gruesome spectacles that marked the pre-modern era. Such mishaps can turn the organized, state-controlled ritual into torture. Solemn spectacles of sovereign power morph into horrible events.
Photo: Christopher Newton’s execution was botched in 2007 (Listverse).