Cruel and increasingly unusual

IN THE hours before her execution, Kelly Gissendaner observed the ghoulish regimen of the condemned. She thanked her lawyers. She had a physical check-up, to confirm she was in a fit condition to die. She ate a final meal that included two Whoppers with cheese and ice cream. She told her three children, whose father she conspired to murder, that she loved them.

All this took place on her second execution date. On the first, bad weather made the trip to Georgia’s lethal-injection chamber too risky. On this second occasion, in March, Ms Gissendaner was waiting in an anteroom to death when the procedure was delayed, then rescheduled, then put off indefinitely. Her third death date was set for September 29th and carried out shortly after midnight, one of three executions planned in America this week.

Another, that of Richard Glossip, who was due to be executed in Oklahoma the next day, was dramatically postponed at the last minute. His conviction in the murder of a motel-owner in 1997 rested largely on the shaky evidence of a man who performed the killing, and who avoided a death sentence by blaming Mr Glossip; his supporters maintain that he was framed. Ms Gissendaner’s guilt was not in doubt; yet her case suggested other, potentially fatal weaknesses in America’s death penalty.

Most striking, for some, was her sex. Georgia had not executed a woman since 1945 (that one was posthumously pardoned); only 15 others have been executed in America since the Supreme Court reinstated capital punishment in 1976. The circumstances of her crime and conviction are another quirk. In 1997 Ms Gissendaner urged her lover, Gregory Owen, to kill her husband, Douglas Gissendaner; she provided the cosh and knife used to bludgeon and stab him. By pleading guilty and testifying against her, Mr Owen earned the possibility of parole after 25 years. She took her chances in court.

Like Mr Glossip’s, hers is thus a vanishingly rare case of a death sentence handed to someone who wasn’t present at the deed; moreover, one in which the weapon-wielding accomplice received a softer punishment. For some, that is further evidence of the caprice with which the death penalty is applied, a problem highlighted by differential treatment of black and white murderers. “The idea that [Gissendaner] is the worst of the worst? I don’t think so,” says Stephen Bright of the Southern Centre for Human Rights. Such inconsistency, exemplified in another Georgian case, led the Supreme Court to suspend the death penalty temporarily in 1972.

But ultimately the greatest import of Ms Gissendaner’s case may lie in its implications for the practice of lethal injection—in recent decades overwhelmingly the main method of execution—which once seemed to offer a fail-safe way to kill prisoners in a country both vengeful and squeamish. In March her execution was chaotically delayed because the lethal suspension became cloudy. Worry about the condition of a fatal drug might seem over-scrupulous, but the risks of faulty techniques were agonisingly illustrated last year by botched executions in Ohio, Arizona and Oklahoma, where a prisoner writhed for 43 minutes before dying of a heart attack. Such amateurism in turn reflects what may be lethal injection’s biggest problem: acquiring the lethal drugs to inject.

That might seem odd too, given the small quantities involved. But because of European Union export bans and the reluctance of pharmaceutical firms to make or supply the ingredients, states that practise execution have been obliged to find alternative concoctions and sources—often relying on lightly regulated “compounding pharmacies”, or latter-day apothecaries. Georgia’s tragicomic experience is emblematic. Running short of drugs, it wound up importing a batch from a pharmacy that shared its premises with a driving school in suburban London; that was confiscated by federal officials in 2011. When orthodox supplies of another drug dried up Georgia turned to a compounding pharmacy. On October 1st, after The Economist went to press, Virginia had been due to conduct this week’s third execution—of Alfredo Prieto, a multiple murderer with (his lawyers claim) intellectual disabilities—using drugs it begged from Texas. That favour led to another last-ditch hearing.

In 2013 Georgia, like several other states, passed a law that conceals most details of its executions. Theoretically such laws protects pharmacists from harassment; in fact, say activists, they allow states to hide the origins of their drugs or to use them without manufacturers’ consent. As a result, why the drugs meant to kill Ms Gissendaner turned cloudy is also opaque. The state’s claim that they were stored at the wrong temperature (a mistake easily rectified) was not vindicated by its own tests.

The Supreme Court recently upheld one variant of lethal injection, in a case brought by Mr Glossip and other Oklahoma inmates; the majority opinion argued, in effect, that execution was bound to hurt a bit. But shenanigans like those in Ms Gissendaner’s case are discrediting the practice—and eventually these logistical and moral problems may prove insurmountable. In anticipation, some states have legalised electrocution, gassing or the firing squad as back-ups. Public opinion, however, is much less favourable towards these less sanitised, more graphic methods. If lethal injection becomes impractical, predicts Robert Dunham of the Death Penalty Information Centre, a lobby group, more states may give up executions altogether. It is already a niche activity: if Virginia kills Mr Prieto, it will be only the sixth state to execute someone this year.

Ms Gissendaner’s lawyers argued that her on-off execution in March constituted the “cruel and unusual” punishment prohibited by the constitution, and that, in the absence of detailed information about them, so might the intended execution drugs. They documented her rehabilitation since her conviction 17 years ago, a spell roughly equal to last year’s national average for the condemned. And if criminals change during such interludes, so can the society that sentenced them. Danny Porter, the district attorney who sought the death penalty for Ms Gissendaner, insists he would do so again. All the same, death sentences are becoming rarer, even for more horrific crimes, in part because some victims’ families are shunning the legal ordeal they entail. Even James Holmes, who killed 12 people in a cinema in Colorado, got life without parole. In Texas, by far the death penalty’s most enthusiastic exponent, no one has been sentenced to death this year. Juries, like pharmaceutical firms, are helping to kill capital punishment.

Last rites

None of these arguments availed Ms Gissendaner. Dawn Skorcik, a former prisoner, said outside the state prison in Jackson that Ms Gissendaner had talked her out of despair, communicating through an air vent when Ms Skorcik was in solitary confinement. Other fellow inmates pleaded for clemency, as did the Vatican and Ms Gissendaner’s children, though her husband’s parents and siblings wanted her to be executed. Just after midnight, as mist descended on the pine grove where protesters prayed, she apologised to her in-laws from the gurney and sang “Amazing Grace” as the drugs flowed in. This time there were no complications; but her case had already helped to show that there is no clean way to kill a person.