A "More Palatable" Way of Killing

By KURT ANDERSEN

A "More Palatable" Way of Killing Texas carries out the first execution by lethal injection

Two doctors stood by. With the medical paraphernalia--intravenous tubes, a cot on wheels and a curtain for privacy--the well-lighted cubicle might have been a hospital room. But Charlie Brooks Jr., a good-looking Texan strapped to the cot, was perfectly healthy. Then, just after midnight last Tuesday, the curtain was drawn back so that 18 unsmiling visitors, three of them Brooks' guests, could watch him die from eight feet away.

Warden Jack Pursley posed the traditional question, and Brooks, 40, did indeed have some last words. He turned to his friend Vanessa Sapp, 27, and said he loved her, prayed aloud to Allah, turned again to Sapp and told her, "Be strong." At that, Warden Pursley gave the cue ("We are ready") to a technician hidden in the next room, and a fast-acting barbiturate came flowing through one of the IV tubes. Brooks yawned, shut his eyes and wheezed. Within minutes, Brooks, who had been a heroin user, was dead from a drug overdose meted out by the Texas department of corrections.

Capital punishment is still administered with such rarity that no execution passes unnoticed; each incites a new debate about the wisdom of the death penalty in general. But in the case of Brooks, convicted of murdering a 26-year-old auto mechanic six years ago this week, several factors converged to make his the most significant execution in years.

Brooks was only the fifth convict executed since Gary Gilmore swaggered to his death before a Utah firing squad in 1977 and ended the de facto ten-year moratorium on capital punishment. Unlike all except one of those recent predecessors, Brooks had not waived his legal appeals, but waged a court fight to the end. In addition, he was the first black put to death since 1967 and the first U.S. prisoner ever legally killed by intravenous injection. With the death-row census now above 1,100 and rising annually by more than 100, it seemed that the pace of U.S. executions could soon quicken. Says Texas District Judge Doug Shaver: "1983 will bring some more. So many on death row are ripe. They've had years there and have been through all the [legal] processes. And this humane way," says ex-Prosecutor Shaver of death-by-injection, "will make it more palatable."

Brooks was the first, but since 1977 the new technique has become something of a legislative fad in the West. In addition to Texas, neighboring Oklahoma and New Mexico have nearly identical laws, as does Idaho; in Washington, the condemned have a choice: lethal injection or hanging. A dozen other states have rejected similar changes, but Massachusetts is now close to adopting such a provision. "Technology has come a long way since the electric chair," says State Senator Edward Kirby. "Because an injection is less painful and less offensive it would be foolish not to use it."

Chemical executions are nothing new--Socrates was obliged to drink his hemlock some 2,300 years ago--nor are the peculiarly American attempts to make capital punishment up-to-date and "humane." The electric chair, first used in 1890, was meant to be an improvement over the gallows, and the gas chamber, first used 34 years later, seemed even more progressive. But using purely medical techniques and substances to kill, with the tacit cooperation of prison physicians, is profoundly troubling to many doctors.

None of the laws require that doctors participate directly in such executions, and the American Medical Association decided that such involvement would be a violation of the physician's prime obligation to preserve life. In Texas last week, the ethical line was drawn very thin: the technician-executioner was surely instructed by a doctor, and Ralph Gray, a Texas department of corrections physician, examined Brooks' veins to see that catheter needles could be inserted, and stood by as he was killed. "There was no doctor involved in the actual process of execution," insisted TDC Official Rick Hartley. "Looking for veins doesn't count." Samuel Sherman, vice chairman of the A.M.A.'s judicial council, crept close to moral disingenuousness: "The doctor may be forced to load the pistol, but he must never be the one to pull the trigger."

Objections to the technique are not merely abstract. Ugly snafus are a real possibility, particularly if the condemned man or woman is obese, very nervous, puts up a struggle or has fragile veins. Technicians, botching an injection, could accidentally inflict excruciating pain.

Some find the technique perverse precisely because it causes none of the grotesque mortifications of the bullet, noose or electric chair. Says Henry Schwarzschild of the American Civil Liberties Union: "A lethal injection is all the more obscene because it's seen as safe and painless. It is an outrageous high-tech offense against human decency." Stephen Smith, assistant dean of medicine at Brown University, agrees. Says he: "When we use euthanasia for animals, we tell a child, 'Fido has just gone to sleep.' It's a way of denying the death. Now people can think, 'We're just putting the prisoner to sleep.' "

The point of lethal injections may be less to spare convicts unnecessary suffering than to spare juries and the public from facing the most palpably grisly consequences of their legal decisions. Says Columbia Law Professor Harold Edgar: "We want to scare the hell out of people, but we want to make it seem as though we're doing it in a pleasant way. It signifies our profound ambivalence about what we are trying to accomplish by killing people."

In the end, the method of death is mostly a matter of morbid aesthetics, tangential to the far more basic and troublesome question of whether society ought to kill criminals. It is not at all clear that capital punishment deters would-be murderers better than the threat of life imprisonment. Yet there is a stubborn popular belief in the unique deterrent power of the death penalty. Even if deterrence were unequivocally disproved, however, public sentiment might still favor capital punishment. The death penalty, say proponents, is necessary to demonstrate that society takes its laws seriously; retribution seems a natural human urge. As the homicide rate doubled during the 1960s and early '70s, however, federal courts were becoming ever more scrupulous in their review of capital sentences. Then, in 1972, came the U.S. Supreme Court's landmark ruling: in Furman vs. Georgia, the court decided that state laws permitted judges and juries so much leeway in prescribing death that the sentence as applied was arbitrary, and thus unconstitutional. Capital punishment, wrote Justice Potter Stewart, was "freakishly imposed" on a "capriciously selected random handful" of murderers. However, in three simultaneous 1976 decisions, the court clarified its views on the subject, most significantly by declaring that the death penalty is not unconstitutional per se. Today all 37 states with capital punishment on the books have laws that were drafted specifically to conform with the court's latest strictures.

The legislators have been successful. Last week when the Justices declined by a 6-to-3 vote to hear Brooks' appeal, they once again okayed capital-punishment procedures, at least implicitly. In Texas, 171 inmates await execution. One of them, Jeffrey Lee Griffin, 27, said death row was dismayed by Brooks' execution, which had been scheduled only a month before. "Everybody walked around like they were in another world," Griffin said. "It seemed like people's hearts stopped beating."

Last week's execution in Huntsville surprised knowledgeable lawyers as well. Brooks' grounds for appeal seemed as strong as those in hundreds of other cases that are pending. According to University of Texas Law Professor Hugh Lowe, who worked on Brooks' behalf, the perfunctory judicial refusal to give a temporary reprieve "clearly shows an impatience with endless death penalty litigation."

Will scores of the condemned die soon? Advocates on both sides of the issue mostly agree that no reign of terror is imminent; there might be several more executions next year but not several dozen. Notes Lawyer David Kendall, who represents death-row inmates: "People have said the floodgates would open every time we've had an execution, and they haven't yet." But as appeals are exhausted, a steady trickle may well begin.

Still, abolitionists like Kendall argue that because of the care and caution required by the Supreme Court, the death penalty is likely to be applied very rarely and thus will always appear arbitrary and freakish. "After a long and complex legal process," says Columbia's Edgar, the handful of people executed are basically no more deserving of death than "the great mass of those who committed comparable crimes and do not get executed."

In the case of Charlie Brooks, the apparent unfairness is plain and jarring, if not unconstitutional. Trial testimony never proved whether Brooks or his partner actually killed the victim; there was just one fatal shot. Last month Woody Loudres, 39, his accomplice, struck a plea bargain with Texas prosecutors and was sentenced to 40 years. If he behaves in prison, Loudres, who last week was not saying if he or his dead pal had been the one who pulled the trigger, could be freed by 1990.

--Kurt Anderson. Reported by Sam Allis/Houston and David Beckwith/Washington

With reporting by Sam Allis/Houston and David Beckwith/Washington

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