A History of Violence

The constitutional right whose protections lie nearest to the skin, flesh, and blood of each American citizen is the Eighth Amendment—the constraint on the government’s ability to punish us in cruel and unusual ways. As with any civil right, if it isn’t enforced, it effectively ceases to exist. Because its enforcement ultimately rests with the nation’s highest court, it is practically, if not ideally, a matter of politics. And though its disintegration may go unnoticed by those who, through good sense or good fortune, never encounter governmental punishment, its loss is felt acutely by those who do.

The Eighth Amendment’s destruction has now been felt this year by three men subjected to sequential execution proceedings in Alabama—one of whom died, two of whom survived. The state’s incompetence at executing its prisoners in accordance with its own protocol has degenerated into a civil-rights crisis, evident in the scattered slices and punctures of three executions gone awry in a row.

The latest of Alabama’s damned and misbegotten execution efforts unfolded last Thursday evening. I was scheduled to serve as a witness to the judicial killing of Kenneth Smith, a man I had met some months prior, when both of us began to suspect that he would, in all likelihood, soon be the subject of a mangled execution. There was little he could do to stop it, though his attorneys fought tirelessly against dismal odds to avert it, and his family prayed unceasingly for God to save him from what two other men had already endured.

[From the September 1957 issue: Is the death penalty necessary?]

What providence did hold for Smith was a severe and bracing mercy: After two days of back-and-forth among three of the nation’s courts concerning his Eighth Amendment rights and the potential of his impending execution to violate them, Smith was strapped down to a gurney for hours and tortured until his executioners simply gave up on killing him.

The Monday after Alabama attempted to kill Kenneth Smith, Governor Kay Ivey released a statement announcing a de facto moratorium on executions until “the Department of Corrections undertake[s] a top-to-bottom review of the state’s execution process” so that “the state can successfully deliver justice going forward.” In the view of the governor’s office, the ordered investigation, to be carried out by the very agency responsible for three consecutive disasters, is a regrettable but necessary step to guarantee that victims’ families are no longer promised executions the state cannot deliver. “For the sake of the victims and their families, we’ve got to get this right,” Ivey said in her press statement. That