Dead End

"The proper punishment was viewed as death, not death plus lots of pain," says Stuart Banner, a professor at the UCLA School of Law and author of "The Death Penalty: An American History." "The driving force behind the changes in executions ever since has been minimizing the pain for the condemned, both for their sake and that of the spectators."

Ah, yes. Less discomfort for spectators. Absolution for the living. We promise the condemned a painless death, something that none of the rest of us are given, and we employ the most modern means of science to accomplish this. The care taken is evidence that this is not revenge, or a continuation of what scholar Francis Zimring calls "the vigilante tradition."

"The sensitivity is not for people opposed to the death penalty, because they are opposed to it on any grounds," says Zimring, a law professor at the University of California, Berkeley, and author of "The Contradictions of American Capital Punishment." "It's for people who are ambivalent supporters."

And Americans (including the president) do support the death penalty.

They do so at 67 percent, though their betters -- newspaper editorial writers, the French -- tell them they shouldn't. The United States is one of four countries that account for about 95 percent of the world's executions (the others being China, Saudi Arabia and Iran). Americans support it three decades after all of Western Europe stopped, calling it outdated, unfair and barbaric. Amnesty International, Human Rights Watch -- oh, you know.

Opponents generally portray it as being on its way out, though that is hardly clear.

Two months ago, voters in Wisconsin asked to reinstate the death penalty -- 153 years after abolishing it. The non-binding referendum, which said the penalty would be used only for vicious crimes where DNA evidence proved guilt, passed at nearly 56 percent.

"It passed in 71 of 72 counties, and in some counties the vote was at 68 percent," said state Sen. Alan Lasee (R), who pushed the bill.

This despite the patchwork nature of capital punishment, the fact that there is really little rhyme nor much reason as to who gets executed, and why. (A man is executed in North Carolina for killing his stepdaughter, but the BTK Killer in Kansas and the Green River Killer in Washington get life in prison.) It is so seldom used (56 times last year) that it has long since stopped being a working part of the criminal justice system. In the past 20 years, prosecutors and supporters have begun saying it is needed because it "brings closure" to victims' families, but they can't possibly mean that, because that would imply that 99 percent of the families of victims never get closure. The system is filled with what Supreme Court Justice Harry A. Blackmun once called "arbitrariness, discrimination, caprice and mistake."

With so much imperfection about crime and punishment, it seemed the least thing the nation could do was to find the perfect means of execution. There would be one perfect note in the whole process, and it would be, with morbid certainty, the last one.

By killing painlessly, we would accommodate the Constitution and assuage our conscience -- the condemned would have a gentler death than they dealt out. (Or, at least, than they were convicted of having dealt out.)

This search started long ago. For a while, back in the 1800s, there was something called the "upright jerker." It was inverted hanging -- you still had the noose, but you didn't drop -- a contraption snapped you up in the air! It was supposed to be a quicker death.