Last week, I suggested that there was no meaningful difference between a “botched” execution and a “proper” one. Today, I will develop this claim and offer some phenomenological support for it. The analysis that follows is rooted in my present geopolitical context – Tennessee – but the issues apply to the US death penalty as a whole. Thank you to Geoff Adelsberg for his research assistance on the legal cases, and to Kelly Oliver for sharing this research with me.
The Supreme Court case Baze v Rees (2008) upheld the constitutionality of the standardized three drug protocol, which consists of 1) sodium thiopental (an anaesthetic), 2) pancuronium bromide (a paralytic), and 3) potassium chloride (an electrolyte which, administered in the right way, stops the heart). Building on Louisiana ex rel. Francis v. Resweber, the Court argued that an “isolated mishap alone” (say, a botched execution) does not violate the Eighth Amendment’s ban on cruel and unusual punishment because “such an event, while regrettable, does not suggest cruelty or a “substantial risk of serious harm.”” Baze established a 3-part standard involving an assessment of “(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible.”
West and Irick won their case on Nov. 22, 2010. But two days later, the state of Tennessee revised its standard execution procedure by introducing what they called a “consciousness check”:
a) After 5 grams of [the anesthetic] sodium thiopental and a saline flush have been dispensed, the Executioner shall signal the Warden, and await further direction from the Warden.
b) At this time the Warden shall assess the consciousness of the condemned inmate by brushing the back of his hand over the inmate's eyelashes, calling the condemned inmate's name, and gently shaking the condemned inmate. Observation shall be documented. If the condemned inmate is unresponsive, it will demonstrate that the inmate is unconscious, and the Warden shall direct the Executioner to resume with the administration of the second and third chemicals. If the condemned inmate is responsive, the Warden shall direct the Executioner to switch to the secondary IV line.
On March 24, 2011, a trial court approved the revised procedures as successfully meeting the standard set in Baze, stating that “that simple manual checks for consciousness of another human being are common sense,” and that the revised protocol appeared to address the “consciousness issues” in Tennessee’s previous execution protocol. The trial court further found that a consciousness check was “feasible, readily implemented, and ... will significantly reduce the substantial risk of severe pain.”
What is a consciousness check, and how does it work? This is where a phenomenological analysis helps to clarify and critique the “common sense” of legal reasoning in the natural attitude. I call to the stand Edmund Husserl, as an expert witness in the phenomenology of “consciousness checks.”
For Husserl, first-person consciousness is singular and unsharable. No one can directly perceive my stream of consciousness, nor can I directly perceive the consciousness of an other. But this does not mean that I am alone in the world, or that my relation to others is based on an ungrounded assumption that other minds exist. Rather, I apperceive the consciousness of the other through a process that Husserl calls “pairing” or empathy. In this context, empathy does not refer to an emotional identification of compassion, but rather to an epistemic relation in which I experience another consciousness as both other (not me, opaque to me) and consciousness (not just a ghost in the machine, but an animate, embodied person with their own awareness of the world. How does this experience of epistemic empathy unfold?
Here I am. Wherever I go, here I am. My body is the movable, but inescapable site of my singular, unsharable consciousness. But it is also the site of my access to other embodied, conscious beings. From my position “here,” I see the other person over “there;” I see them looking at the same things from a different perspective. I may even see them looking at me, as in Sartre’s famous analysis of the encounter between two subjects in a park. I cannot see what the other sees, but I can see that they see by attuning myself to their comportment towards a shared world, and by imaginatively transposing my “here” into the position of their “there.” That’s the work of empathy. It’s not a logical or analogical process by which I deduce the fact of your consciousness on the basis of certain clues or resemblances. Rather, it’s a process of animate-bodily attunement that Husserl calls “pairing.” My here correlates with your there, and vice versa. Ultimately, the sense of my own personhood is supported by this attunement; I cannot be myself, understood as a full social person or what Heidegger will later call Being-in-the-world, without the supportive network of such attunements.
So what’s going on in the so-called “consciousness check”? A prisoner is strapped to the gurney. A dose of anaethetics is dispensed, followed by a saline flush. The executioner signals the warden. “At this time the Warden shall assess the consciousness of the condemned inmate by brushing the back of his hand over the inmate's eyelashes, calling the condemned inmate's name, and gently shaking the condemned inmate. Observation shall be documented” (emphasis added).
In the absence of an objective test for the presence or absence of consciousness, the consciousness check requires the warden to bring his own body into relation with the body of the prisoner. It calls upon him to engage in a close, even intimate process of epistemic empathy with the condemned: to attune himself bodily to the person strapped into the gurney, to touch them and shake them gently, to call their name, to look and listen for a response. Once the warden is satisfied that consciousness is absent – that “there is no there there” – the execution may continue with no “substantial risk of serious harm.”
Why? Because there’s no other left to harm. There’s just an inanimate body on a gurney. That body may be pumped full of chemicals and its physical characteristics may change – its skin color may change from pink to blue, for example – but we should not take these perceptible changes to indicate anything like pain or suffering because there is no one there to feel pain or suffering. The prisoner, having “checked out” of consciousness, is already a corpse.
But if that’s the case, then a “proper” execution is not really an execution at all. It’s just a procedure in which a physical object undergoes certain changes in response to certain chemical stimuli. The more significant moment is the “consciousness check” in which the prisoner is pronounced “gone” before they are actually dead. The only “real” execution would be the botched execution, where the warden and all the witnesses cannot help but perceive the death throes of the prisoner, where they are drawn back into a relation of epistemic empathy, whether or not they feel compassion for the executed. Only as “botched” does the execution appear as an execution, as the putting to death of a person who was there, but whose capacity for consciousness has been annihilated by those who, both near and far, collaborated in putting him to death.
Let’s pause for a moment and call our phenomenological expert witness back to the stand. I suggested that, in being required to perform a “consciousness check,” the warden was being called into a process of epistemic empathy with the prisoner. But once we reflect on the role of the “consciousness check” in validating the process by which someone is pronounced dead and gone, even before their actual execution, then it becomes clear that empathy cannot be instrumentalized in this way without being profoundly distorted. Empathy cannot be put in the service of annihilating the consciousness of the other without ceasing to be empathy. This is the case whether or not the epistemic relation of empathy is supported by emotionally empathic feelings such as compassion or mercy.
I’m not interested in the feelings of the executioner, although I’m sure they must be complex. I’m interested in the relational structure of personhood and in the way it is both implicated and undermined in the process by which state killing is justified, implemented, and modified to diminish the “substantial risk of serious harm.” This “tinkering with the machinery of death,” to quote Justice Blackmun, both relies upon the structure of epistemic empathy and exploits it in order to obscure the continuing risk that a prisoner will suffer during execution and that they will be executed. If the condition under which state killing becomes acceptable to the courts is the one-sided pronouncement by the warden that a prisoner is no longer conscious, then it is not just the consciousness of the executed prisoner that is at “substantive risk of serious harm,” it is the relational structure of consciousness itself.