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Methods of Execution in France, 1792 to 1981:
Sorry for the gruesome subject matter, but my post on foreign law and methods of execution brings to mind the practices used in one of the countries popular among the Justices who favor looking to foreign law: France, or as Justice Breyer would put it, La République Française.

  Wikipedia has a fascinating history of methods of execution in France. It seems that from 1792 to 1981, when France abolished capital punishment, the only allowed method of execution was the Guillotine. The Guillotine was originally designed in the late 18th Century to be a more humane method of execution: the idea was that it would be fast, painless, and certain.
The basis for the machine's success was the belief that it was a humane form of execution, contrasting with the methods used in pre-revolutionary, ancien régime (former regime) France. In France, before the guillotine, members of the nobility were beheaded with a sword or axe, while commoners were usually hanged, a form of death that could take minutes or longer - other more gruesome methods of executions were also used, such as the wheel, burning at the stake, etc. In the case of decapitation, it also sometimes took repeated blows to sever the head completely. The condemned or the family of the condemned would sometimes pay the executioner to ensure that the blade was sharp in order to provide for a quick and relatively painless death.
  However, it seems that the use of the Guillotine was plagued by concerns that it was not as swift and painless as it was designed to be. Critics argued that in fact those executed by the Guillotine suffered greatly in the seconds after the blade fell:
From its first use, there has been debate as to whether the guillotine always provided as swift a death as Dr Guillotin hoped. . . . . [in light of] the possibility that the very swiftness of the guillotine only prolonged the victim's suffering. The blade cuts quickly enough so that there is relatively little impact on the brain case, and perhaps less likelihood of immediate unconsciousness than with a more violent decapitation, or long-drop hanging.

Audiences to guillotinings told numerous stories of blinking eyelids, moving eyes, movement of the mouth, even an expression of "unequivocal indignation" on the face of the decapitated Charlotte Corday when her cheek was slapped. Anatomists and other scientists in several countries have tried to perform more definitive experiments on severed human heads as recently as 1956. Inevitably the evidence is only anecdotal. What appears to be a head responding to the sound of its name, or to the pain of a pinprick, may be only random muscle twitching or automatic reflex action, with no awareness involved. At worst, it seems that the massive drop in cerebral blood pressure would cause a victim to lose consciousness in several seconds.
Anyway, that's Wikipedia's take; I don't know how accurate it is.
Crust (mail):
Orin:
[France is] the favored country among those Justices who favor looking to foreign law

Really? I would have thought that their favorite country would at least be one with a common law system.
1.2.2008 4:40pm
OrinKerr:
I meant it as a joke, but your comment makes me realize it doesn't work; I've amended the post.
1.2.2008 4:44pm
Crust (mail):
I meant it as a joke

Apologies for my tin ear; thanks for the clarification.
1.2.2008 4:46pm
GW student (mail):
On the lighter side, no discussion of the Guillotine is complete without a link to:

http://www.miketheheadlesschicken.org
1.2.2008 4:54pm
Bender (mail):
I, and several others, have pointed this out in previous posts but it is worth reiterating: There is an absolutely painless, cheap, and foolproof way to impose the death penalty. Put persons who have been sentenced to death into an air tight chamber filled with pure nitrogen. This will cause death by anoxia but without any of the usual discomforts associated with that condition. I cannot understand why this obvious information has not entered the wider debate on the death penalty.
1.2.2008 5:04pm
FantasiaWHT:
Has anyone else read C.S. Lewis's "That Hideous Strength"? The discussion about heads "surviving" after being removed reminded me instantly of that fantastic novel.
1.2.2008 5:07pm
Richard Riley (mail):
Why is Justice Breyer likely to refer to France in French? Has he done that before?
1.2.2008 5:08pm
Paul Zrimsek (mail):
They've found that heads removed by an experimental Hello Kitty guillotine were able to simper for as long as two minutes afterwards.
1.2.2008 5:21pm
Duffy Pratt (mail):
There are also accounts from the revolution of people who had to have the blade dropped more than once, when it lost its edge. I imagine that must not have been very pleasant for the subject, but it was probably a crowd pleaser.

Compared to other methods used earlier in England and France, even a multiple drop guillotine was an act of kindness. It pales in comparison to being drawn to the place of execution, then hung by the neck until not dead, then eviscerated, and emasculated, having those parts burned in front of you, and then (with an especially good executioner), having your beating heart removed and shoved down your throat. Afterwards, to be beheaded, and cut into four sections, and brought to all edges of the kingdom, just for a little post mortem fun.
1.2.2008 5:28pm
Le Messurier (mail):
I would not advocate a purposefully painful execution, but I fail to see why people get all worked up when the convicted are executed for heinous crimes and perhaps suffer some pain. They'll forget it soon enough, and if one of the purposes of the death sentence is deterrence, the likelihood of pain upon execution should be an added benefit.
1.2.2008 5:31pm
Dilan Esper (mail) (www):
Audiences to guillotinings told numerous stories of blinking eyelids, moving eyes, movement of the mouth, even an expression of "unequivocal indignation" on the face of the decapitated Charlotte Corday when her cheek was slapped.

I can understand why she was indignant. It takes only one beheading to ruin a perfectly good day.
1.2.2008 5:34pm
alias:
Isn't it a regularly used joke among comedians to ask why they swab the condemned's arm with alcohol when they administer the lethal injection?

"[exaggerated look of puzzlement] are they worried about infection?"
1.2.2008 5:38pm
Justin Johnson (mail):
This will cause death by anoxia but without any of the usual discomforts associated with that condition.


Part of what's considered 'discomfort' in the case of execution is the time from the start to the end of the method. The gas chamber was considered humane except for the 10-20 seconds during which the condemned struggled to continue breathing and experienced terror as they understood what was imminent. Others tried holding their breath, drawing it out for several minutes.

What I don't understand is why unconsciousness isn't separated from execution. A wood chipper is humane if the condemned isn't awake to experience it. Simply anesthatizing the condemned before any method is applied renders any non-destructivee method palatable (okay, the wood chipper is out) for both the condemned and onlookers. It also offers a separation point that allows doctors to participate, ensuring that the condemned is properly unconscious, without implicating them in the means of execution itself.
1.2.2008 5:41pm
Carolina:

Simply anesthatizing the condemned before any method is applied renders any non-destructivee method palatable (okay, the wood chipper is out) for both the condemned and onlookers. It also offers a separation point that allows doctors to participate, ensuring that the condemned is properly unconscious, without implicating them in the means of execution itself.


I agree. The complaint about the current system of lethal injection is that apparently on occasion not enough anesthetic is given, and the person might be conscious for the remaining two (very painful) drugs in the 3-drug sequence.

I find this baffling, though. Why not give 10x the necessary dose? If that's not foolproof, give 50x the necessary dose. An anesthesiologist in a hospital has to worry about giving too much and killing the patient. . .an executioner doesn't have that concern.

Give enough anesthetic to put a blue whale out and it would seem the problem is solved.
1.2.2008 5:53pm
Justin Johnson (mail):
I find this baffling, though. Why not give 10x the necessary dose?


I'm not sure, but I think a quick, massive overdose of anaethetic can cause a violent reaction that, while effective in killing the person, is what they're trying to avoid.
1.2.2008 6:02pm
gattsuru (mail) (www):
Drug overdoses tend to be messy, even intravenous ones.

Given that the condemned tend to be panicky as soon as they're told that it's their time, I don't quite see the point in avoiding psychological fear or terror. We can't avoid this with even life imprisonment.

Nitrogen comas or carbon monoxide poisoning still seem more efficient than trying to find a good vein -- especially in the case of drug users, who tend to have massive tolerances and unusual blood lines -- but the added potential time may be considered a negative.
1.2.2008 6:05pm
Jim Rhoads (mail):
It is instructive that even in the eighteenth century, the most seemingly humanely administered executions engendered the compaint that they were not sufficiently humane.

This is apparently a time honored way to attack the death penalty indirectly without attacking the death penalty head-on.
1.2.2008 6:11pm
Dylanfa (mail) (www):
For a sci-fi novel where the protagonist survives and recovers from a beheading, read Use of Weapons by Iain M. Banks. An antagonist even brings him the gift of a hat while they're regrowing his body.
1.2.2008 6:31pm
Jon Rowe (mail) (www):
Foucault described in one of his books the way the Ancient Regime used to execute folks in France, which was far worse that anything above described. It involved getting your body burned in hot sulfur, cutting your limbs to soften them up for the horses, and then being drawn and quartered -- ripped apart -- by horses.
1.2.2008 6:33pm
GeorgeT (mail):
I would not advocate a purposefully painful execution, but I fail to see why people get all worked up when the convicted are executed for heinous crimes and perhaps suffer some pain. They'll forget it soon enough, and if one of the purposes of the death sentence is deterrence, the likelihood of pain upon execution should be an added benefit.


How about this for a reason?


Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
1.2.2008 7:04pm
Le Messurier (mail):
GeorgeT:

How about this for a reason?

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The words "cruel" and "unusual" are relative terms. They are words that are defined for the purposes of the law by men who can legitimately disagree about their meanings. One can say that the dp is cruel or even unusual. One can also, on the other hand, say that a little pain with the execution is not cruel or unusual but is justified and a deterrent, and that retribution can be a good thing.
1.2.2008 7:20pm
Steve2:

The words "cruel" and "unusual" are relative terms. They are words that are defined for the purposes of the law by men who can legitimately disagree about their meanings. One can say that the dp is cruel or even unusual. One can also, on the other hand, say that a little pain with the execution is not cruel or unusual but is justified and a deterrent, and that retribution can be a good thing.


Heck, I maintain that if the SCOTUS were really applying a rough proportionality test to determine if things constitute "cruel" punishment, there's plenty of actions for which the aforementioned pre-guillotine execution methods would be upheld as proportional to the crime and thus not cruel.

Anyway, what about direct shot, either close-range gun or one of those cow-slaughtering bolt guns, to the the head? That would causes instant and massive brain trauma, so it seems there's little to nothing that would cause more immediate unconsciousness or death.
1.2.2008 7:43pm
rlb:
I've never understood why the Constitution isn't just read literally on this issue: cruel and unusual. Makes the analysis pretty easy, doesn't it?
1.2.2008 7:56pm
Waldensian (mail):

even an expression of "unequivocal indignation" on the face of the decapitated Charlotte Corday when her cheek was slapped.

According to no less an authority than Wikipedia: "This slap was considered an unacceptable breach of guillotine etiquette, and [the perpetrator] was imprisoned for 3 months because of his outburst."

I'd have to agree with that decision. Killing Marat may have warranted some form of punishment for Corday, but slapping a guillotined head strikes me as a particularly egregious example of "piling on" (or perhaps a "late hit").
1.2.2008 7:56pm
ys:
For secret life of separated heads check out this item. The original book title was "Professor Dowell's Head." Gives detailed descriptions of technologies to keep severed heads alive, provide them with means to talk and even describes a (failed for reasons of organ rejection) attempt to reattach a head to a different body.
1.2.2008 7:57pm
Waldensian (mail):

They are words that are defined for the purposes of the law by men who can legitimately disagree about their meanings.

True, and if it's the Supreme Court's job to decide what the law is, then they are the "men" who are.... the deciders.

Which is why I'm trying to figure out why it's so awful for them to consider foreigners' (alleged) practices when they make that decision. Foreigners' practices strike me as one of several hundred things you might justifiably ponder when wondering if a punishment is cruel and unusual.
1.2.2008 8:00pm
Rick Rockwell:
Strap explosives to the condemned with a remote-controlled detonator and tell them to take a stroll across an open field. One instant they exist, the next they don't. Pretty violent, but it would get it done quickly.
1.2.2008 8:01pm
Duffy Pratt (mail):
Back when, post execution corpse desecration and display was often part of the punishment. What if Texas decreed that for certain crimes, following the execution the corpse should be beheaded, and the head displayed on a pike outside the nearest county courthouse? I assume those of you who think you should take the "AND" literally would be ok with this as a constitutional matter, because its tough to be cruel to someone who is already dead. What about others? Would this violate the 8th amendment? due process? the religious liberty clauses? or perhaps the Takings clause?
1.2.2008 8:06pm
Stephen C. Carlson (www):
Killing Marat may have warranted some form of punishment for Corday, but slapping a guillotined head strikes me as a particularly egregious example of "piling on" (or perhaps a "late hit").

Adding insult to injury, I'd say.
1.2.2008 8:07pm
Peter Shalen:
As Poo-bah sang in the Mikado---I'm quoting from memory---
"And thought you'd have said that head was dead, for its owner dead was he,
It stood on its neck with a smile well-bred, and bowed three times to me.
It was none of your impudent off-hand nods, but as humble as could be,
For it clearly knew the deference due to a man of pedigree!"
1.2.2008 8:27pm
Peter Shalen:
Sorry I marred that with a typo. Trying again:
"And though you'd have said that head was dead, for its owner dead was he,
It stood on its neck with a smile well-bred, and bowed three times to me.
It was none of your impudent off-hand nods, but as humble as could be,
For it clearly knew the deference due to a man of pedigree!"
1.2.2008 8:31pm
rlb:
Back when, post execution corpse desecration and display was often part of the punishment. What if Texas decreed that for certain crimes, following the execution the corpse should be beheaded, and the head displayed on a pike outside the nearest county courthouse? I assume those of you who think you should take the "AND" literally would be ok with this as a constitutional matter, because its tough to be cruel to someone who is already dead. What about others? Would this violate the 8th amendment? due process? the religious liberty clauses? or perhaps the Takings clause?


Or, maybe the Constitution doesn't speak to the issue? Sheesh.
1.2.2008 9:24pm
AnonymousLurker:
I find the stories about severed head unbelieveable. It takes a constant supply of oxygen and glucose to power the brain, and blood would immediately drain out of all the severed vessels. I can perhaps imagine seconds (less than five) of consciousness, but not long enough to be slapped or otherwise tested.
1.2.2008 10:11pm
NI:
I grew up on a farm and in my youth decapitated more chickens and turkeys than the combined readership of this blog will eat the entire rest of their lives, and I am confidant they don't feel a thing (assuming the butcher has a good aim and one single clean blow does the job). The body flaps around a bit -- the proverbial chicken with its head cut off -- but the eyes glaze before the head hits the ground. No motion, no blinking, no lips moving, no nothing. When my time comes I hope my own demise is as quick and painless.
1.2.2008 11:01pm
Duffy Pratt (mail):
Jon Rowe:

French drawing and quartering is bad. Read up on flaying, impaling, boiling, and slow slicing. Also, take a look at some of the alternative methods of burning at the stake, such as being suspended upside down above the fire, so that its more of a very slow roast than a burn.
1.2.2008 11:39pm
Fub:
NI wrote at 1.2.2008 11:01pm:
The body flaps around a bit -- the proverbial chicken with its head cut off -- but the eyes glaze before the head hits the ground. No motion, no blinking, no lips moving, no nothing.
Genetically modified chickens?
1.3.2008 1:23am
MikeMG (mail):
Justin Johnson:

"except for the 10-20 seconds during which the condemned struggled to continue breathing and experienced terror as they understood what was imminent. Others tried holding their breath, drawing it out for several minutes."

For its proponents, the outstanding comparative advantage of pure nitrogen as a method of execution is that it causes unconsciousness without warning.
One of nitrogen's industrial uses is to create an inert noncombustible/nonexplosive atmosphere inside unused vessels and piping. Over the years there have been many industrial accidents in which workers inspecting or working on this equipment have accidentally breathed pure nitrogen. They just drop unconscious, there is no warning, no struggle for breath, no choking, no time to react.
1.3.2008 1:40am
William Oliver (mail) (www):
The biggest problem with the guillotine is cleanliness. There have been a number of studies of death by decapitation and/or opening/cannulation of the carotids in the food industry. The issue of quick "painless" euthanasia is pretty much a solved problem when it comes to food animals. The bolt gun works very well with them, and it seems to have worked the same way in the rare cased of homicide using such devices.

Guillotines are fast and the bottom line is that with the opening of of the vasculature to the brain the victim is insensate within a few seconds at most. However, the heart will continue to beat for some time -- until approximately 40% of the blood volume is lost (in animal studies, up to 20 minutes). The resulting pool of blood can be quite messy.

If one reviews the video of the murder of Daniel Pearl by Islamic militants, the same thing can be observed. In the two segments released to the public, you can observe the Islamic terrorist playing with the carotid artery flow as the heart moves into an agonal rhythm. While this goes on for some time, it is clear that Mr. Pearl is quite brain-dead well before the first temporal segment (the two segments in the public video are shown in reverse temporal order -- the second segment occurred first).
1.3.2008 9:26am
Kent G. Budge (mail) (www):
I have to agree with William Oliver. Objections to the guillotine as a means of execution -- when they aren't cover for objections to capital punishment in general -- come across to me as expressions of squeamishness, not humanity. The condemned almost certainly suffers very little pain, and the preparations for execution can be done very swiftly -- seconds from the time the condemned knows he is about to be executed to the time the lights go out. This is in sharp contrast with lethal injection, where the condemned knows he is about to die for at least half an hour.

In fact, I'd assert that the guillotine is the best of all methods: Actual suffering is minimal, but it's gruesome enough to maximize any deterrent value. Lethal injection maximizes the mental torture, if not the physical pain, but is so "sanitary" that any deterrent value is lost.

The explosives idea would be good but for the likelihood of a long setup time. How about slapping a helmet full of shaped charges on the condemned's head, backing off, and hitting the button? Either it works completely and instantaneously (brain shredded before pain can even be registered) or it doesn't work at all and you commute the sentence to life without parole. Gruesome, of course, but that's the deterrent. And a preloaded helmet might make for an acceptably short setup time.
1.3.2008 12:50pm
Dennis Nicholls (mail):
The biggest problem with lethal injection is requiring doctors to administer it - which they can refuse to do because of the H. Oath. This would also be a "back door" approach to limiting capital punishment.

A 12 gauge shotgun loaded with a deer slug, fired into the condemned's face at point-blank range, would cause essentially instantaneous death due to massive cell damage. This would be a cheap and foolproof solution.
1.3.2008 1:06pm
Smokey:
The biggest problem with lethal injection is requiring doctors to administer it...
Doctors should never be involved. Mad dogs are normally euthanized by a veterinarian.
1.3.2008 3:20pm
rarango (mail):
I think Jim Rhoads comment nailed it. Opposition to capital punishment really doesnt have a thing to do with the method--It has everything to do with the practice itself. And it seems to me there are sufficient arguments that can be made in opposition to capital punishment that don't rely on macabre anecdotes. I respect those that oppose capital punishment on moral grounds--I don't happen to agree with them.
1.3.2008 3:28pm
Bama 1L:
It seems that from 1792 to 1981, when France abolished capital punishment, the only allowed method of execution was the Guillotine.

It's probably implicit, but the guillotine was for those convicted of common crimes such as murder. The French retained the firing squad for treason and military offenses. Famous victims of French firing squads include Marshal Ney, Mata Hari, and Pierre Laval. Less famous, several thousand French soldiers during WWI.
1.3.2008 3:45pm
Nick Good - South Africa (mail):
The Chinese administer a pistols shot to the cortex, via the back of the head. I very strongly suspect that's instant 'lights out'. The bullet will destroy the brain faster than nerve impulses travel. In an instant there's nothing left to feel. The executed won't hear the shot.

If it was me, a shot to the cortex would be my choice.
1.3.2008 4:25pm
Hoosier:
A couple comments:

1) "Anatomists and other scientists in several countries have tried to perform more definitive experiments on severed human heads as recently as 1956."

EWWWWWWWWWWWWWWW!!!!!!!!!

(And, um, WHERE in God's name did they get these heads?!)

2) Survivors of severe injuries--sustained in car-crashes and so on--tend to have no memory of the event. One hopes this is evidence that the recently-decapitated are unaware of their plight. (And, anyway, Marat had it coming.)

3) We could end this entire debate about the most humane way to kill prisoners by simply not killing them.

4) If we MUST execute, I know how I'd like to go: Shot by a jealous wife. Any takers?
1.3.2008 5:02pm
Kent G. Budge (mail) (www):
A bullet to the brainstem is a pretty humane way to go when it's done right. The problem is keeping the victim's head still, though that's probably soluble.

In a way, Hoosier is right. There's no point worrying the details when the question of whether to do it at all is unsettled. There are several methods I would consider adequately humane; the inability to conduct humane executions is therefore not an argument against them I will take very seriously.

In principle, I'm in favor of capital punishment for murder or crimes amounting to murder, such as treason. In practice, I've lost enough faith in our justice system to be somewhat undecided. Too many juries are too stupid, and too many prosecutors are overzealous. Of course, that's true of non-capital cases as well, and I don't want to chuck the whole system. My brain hurts.
1.3.2008 7:11pm
William Oliver (mail) (www):
<i>"2) Survivors of severe injuries--sustained in car-crashes and so on--tend to have no memory of the event. One hopes this is evidence that the recently-decapitated are unaware of their plight. (And, anyway, Marat had it coming.) "</i>

Unfortunately, no. While many people are, in fact, made unconscious, and thus also amnestic, in those who retain consciousness the lack of memory comes from damage in the transfer from short to long-term memory. It is a traumatic version of what happens with benzodiazepines and so-called "date-rape" drugs.
1.3.2008 9:14pm
Hoosier:
"In a way, Hoosier is right."

In a way, I appreciate that.
1.3.2008 10:57pm
markm (mail):
"I find the stories about severed head unbelieveable. It takes a constant supply of oxygen and glucose to power the brain, and blood would immediately drain out of all the severed vessels. I can perhaps imagine seconds (less than five) of consciousness, but not long enough to be slapped or otherwise tested."

Five seconds is more than long enough, if the executioner moved quickly. If that's not good enough for the extreme humanitarians, use a heavy-caliber bullet to the back of the head - it will destroy the brain in about a millisecond, faster than a sensation of pain could be formed.

The only trouble with these execution methods is they're not for the squeamish to watch, or to clean up the execution chamber afterwards. Decapitation leaves the heart pumping for long enough to pump out a gallon or more of blood, and it might be spraying out at first. The shot in the head method scatters tissue and bone fragments around. Electrocution, the gas chamber, and lethal injection were all adopted to reduce the visible grossness, not for humanitarian reasons.

As for putting the decapitated head up on a pike - why not?
1.4.2008 3:29pm
Hoosier:
Because it's a human head. Or did I miss something?
1.4.2008 9:04pm
William Oliver (mail) (www):
"I can perhaps imagine seconds (less than five) of consciousness, but not long enough to be slapped or otherwise tested."


Actually, it's closer to 15 seconds. My favorite story about this was told to me by my mentor years ago. A contractor was working on the bathroom of a house and touched a live wire. He got up looked in the mirror, turned to his partner, and said "Hey! Would you look at that? I'm turning blue!" and then dropped unconscious.

I have been involved in the review or investigation of a number of similar deaths, and 15 seconds +/- 5 seconds covers most of them.
1.5.2008 2:03pm