Death Penalty Proponents Don't Have to Like the Nazi Comparisons, But We Don't Have to Ignore Them
In both their methods and their commitment to institutional secrecy, comparisons between American capital punishment and Nazi state homicide are inevitable.
Note: the following contains significant research from my book A Quiet Death: The Failure of Lethal Injection. If you’re interested in learning lethal injection’s place in the larger continuum of capital punishment and state killing, please consider sharing and subscribing, as these make a huge difference to publishers.
Before and after the disastrous nitrogen execution of Kenneth Smith, commentators made an only natural comparison. Though the method is (usually) different—Nazis used a hydrogen cyanide-based pesticide to slowly asphyxiate Holocaust victims by interrupting their , while the nitrogen used by Alabama and proposed in several other states theoretically works without a pain response1—the superficial similarities to the Holocaust’s gas chambers are undeniable: the subject is forced into an airtight room2 and subjected to breathe non-livable air until they stop living.
Buttressed by the total lack of any real accountability, the natural inclination of death penalty proponents in America is to avoid talking about the nastier parts of the business altogether. When a Jewish group in Phoenix sued then-Arizona Attorney General Mark Brnovich for planning to reintroduce cyanide gas to the state’s execution methods, he responded with typical platitudes about “the ultimate justice;“ then-governor Doug Ducey cited his obligation to “the law as it’s spelled out,“ apparently hoping that particular defense has a better day in the court of public opinion than the actual court it was tried in.
The public has a well-earned skepticism of likening one’s opponents to Nazis, and it’s initially understandable for it not to have met a response that I’m aware of from a state or federal prison official. Comparisons in method, however, tell only part of the story. The policies of subterfuge, deception, and unsanctioned human experiments that have maintained the post-Furman death penalty are both less superficial and less defensible.
“An Idea Worthy of Nuremberg”
The idea that “humane“ executions resemble Nazi crimes against humanity predates the executions themselves. When lethal injection’s legislative father, Bill Wiseman, looked for moral or ethical sanction to ease his conscience about voting for state homicide, he turned to famed criminologist and capital punishment expert Norval Morris. Morris denounced the idea even then as “an idea worthy of Nuremberg.”
Hitler’s attitude toward “racial hygiene“ was well-known as he ascended to power, but there was still one powerful obstacle to the full extent of his plans. The Catholic Church operated most of the asylums and convalescent centers in Germany, and while they weren’t free of complicity with the Nazis, they were capable of engendering strong public protest when they had the will. The solution was to run the program in secret: Nazi euthanasia would be known as Aktion T4, referring only to the satellite office out of which the program was run. The administration of the program was handed off to Karl Brandt, the Fuhrer’s personal physician, and Chancellery head Philipp Bouler, a private cabinet answerable only to Hitler himself. A single directive signed by Hitler provided the only proof it ever existed.
The Aktion’s first subject would be a Saxon infant, born with congenital defects that left him without all four limbs (accounts vary as to how many) and an “idiot,“ the latter established by methods lost to history. The baby would be killed by an injection of phenobarbital (then known by its trade name Luminal), a barbiturate like the Wiseman brain trust’s initial choice of sodium thiopental and its common replacement, pentobarbital.3 Ultimately, more than 70,000 developmentally disabled or otherwise “undesirable“ souls would fall victim to the needle or its more infamous replacement, the gas chamber.4
Lethal Injection’s Similar Sunlight Allergy
America, by contrast, needed no such secrecy. After all, these weren’t innocent children or the developmentally disabled (theoretically) we were after, but hardened criminals, and we were proud to replace the “shotgun above the door“5 of our society.
That is, until vendors stopped playing along.
Under activist and foreign governmental pressure, drug companies began refusing to sell their products for use in executions. Hospira pulled the original lethal injection sedative, sodium thiopental, out of the US market entirely after failing to guarantee European regulators it wouldn’t be used in lethal injection, though it meant depriving the country of a (then-) WHO Essential Medicine. Legislators and prison officials took this as a sign to reevaluate—not whether capital punishment was worth it, mind you, but how they could keep lethally injecting.
At first, prison officials began making cash deals for thiopental in scenarios eerily similar to the ones that brought significant numbers of their population to their door. Oklahoma paid an Indian supplier out of petty cash so their transactions wouldn’t leave a paper trail, as Arizona did with a London driving-school-slash-pharmaceutical-retailer. However, as these efforts were whack-a-mole defeated by foreign regulators, new cocktails were designed, based not on medical efficacy but availability, and not by medical personnel following the painfully scrupulous institutional review process but by corrections officials comparing notes.
However, providers of legally available drugs were still subject to public comment, and most didn’t want the bad PR from participating in homicides. State legislators answered with a scheme to exempt the state’s most extreme intervention from public view once and for all. In 2011, Arkansas passed the first “shield law,“ officially exempting everyone involved in the state’s capital punishment system from public records requests. 11 states would follow, and many more would interpret existing statutes to allow such secrecy. This allowed them to use compounding pharmacies—lightly regulated specialty shops for certain hard-to-find medicines—without their collaborators’ fear of bad press.
The Veil Is Pierced
However, transparency is slowly working its way into the system. Last year, Florida death row inmates won a federal court victory requiring the state to disclose information about its lethal injection drugs, including suppliers. Then this month, Last Week Tonight revealed the government’s supplier of pentobarbital for its single-drug formula, Absolute Standards of Connecticut. Follow-up reporting by The Intercept found, despite attempts at secrecy, an impressive paper trail all but confirming their involvement (the company denied this but threatened to call police rather than discussing details). A source cited the “lobby against the death penalty” as having success in slowing the pace of executions, forcing prison systems to turn to “shady characters.“
A Question of “Justice“
Certainly, a person reading this comparison could point out the vastly different amounts of sympathy death row prisoners and Holocaust victims can expect. Wrongful convictions notwithstanding, a far greater proportion of death row prisoners arrive there as a result of their own choices.
But is that the right comparison? I’d argue not: capital punishment is something we’ve chosen to do, and the correct comparison is not to the methods’ subjects but their perpetrators. The current practice of capital punishment requires subsuming core American values to the aims of the state; consider the company that puts us in.
Arizona, meanwhile, is proposing a return to cyanide gas.
As Austin Sarat notes in Gruesome Spectacles, airtightness isn’t a guarantee: witnesses to Nevada’s execution of Gee Jon had to be evacuated after reporting the distinctive smell of cyanide.
Portions not otherwise cited are from Kershaw’s Hitler: Nemesis, 1933–1945, 253–260.
Total victims of the program, which included sterilization, may number as many as 400,000.
Texas Bar Journal, vol. 37 issue 5 (February 22nd, 1974). Pg. 1113.
State sanctioned murder is barbaric as fuck. Humans are not civilized.