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7 Dartmouth L.J. 1 (2009)

handle is hein.journals/dcujl7 and id is 1 raw text is: JUSTICE STEVENS AND THE TECHNOLOGIES OF DEATH: WHY SOME METHODS OF EXECUTION ARE WORSE THAN OTHERS, BUT NONE ARE BETTER ANDREW HILLAND* This article examines the correlation between execution methods and the general legitimacy of the death penalty, in light of the Supreme Court's ruling in Baze v Rees. It is argued that two historical shifts- the move of executions from the public to the private realm and technological refinements in the machinery of death- are at odds with the primary stated rationales of capital punishment in America, in particular those of retribution and deterrence. The article concludes that this tension reveals a fundamental societal ambivalence about the death penalty in America which may ultimately lead us to accept what Bedau has described as 'Schwarzschild's Paradox': the notion that some methods of execution are worse than others, but that none are better. I. INTRODUCTION .............................................................. 2 II. ADVANCEMENT IN THE METHOD OF STATE KILLING.. ................ 3 A. The Hidden Reality: from public to private executions............. 5 B. Perfecting the Technology of Death ..................... 6 1. Hanging .....................6.... ...........6 2. Electrocution ................................. 7 3. Gas Chamber ....................... .......... 8 4. Lethal Injection ............................... 9 III. EXPLAINING THE SHIFTS - HUMANE MOTIVES? .......................... 11 A. From Public to Private Executions ........... .............. 11 B. Perfecting the Technology of Death ................... 13 IV. HISTORICAL SHIFTS AND THE RATIONALES FOR CAPITAL PUNISHMENT ........................................................ 16 A. Incapacitation .......................................... 17 B. Retribution. ............................................. 18 C. Deterrence ............................................. 22 V. EXECUTION METHODS AND THE SOCIETAL AMBIVALENCE ................. 24 VI. CONCLUSION: TOWARDS SCHWARZCHILD'S PARADOX ....... ...... 26 * Andrew Hilland received a first class B.A in Jurisprudence from Magdalen College, Oxford University and an L.L.M from New York University. He is currently a trainee lawyer. with Freshfields Bruckhaus Deringer LLP in London. The author would like to thank Professor David Garland for his comments on earlier drafts of this paper.

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