Jon Yorke, a British law lecturer who has written widely on the U.S. death penalty, argues that the law’s focus on the actual act’s pain (Baze v. Rees, presently pending in the Supreme Court, asks how courts should consider the risk of pain during execution) may be misplaced:

While hypoxia might meet the approval of some, others argue that focusing on the dying moments of a prisoner is a distraction to the wider issue – the mental trial of being on death row for months or years.

“No method of execution can prevent the knowledge that you are going to die by the state in the future,” says Jon Yorke, a law lecturer who has done extensive death penalty research in the US. “That will have a psychological impact, it can never be humane.”

The so-called “death row phenomenon” affects an inmate in two ways, says Mr Yorke. One concerns the mind. In 1986 in Florida, Alvin Ford escaped the death penalty because he had become insane on death row.

The other is the physical impact of the structure in which an inmate is being held. In Oklahoma, where cells on death row are deprived of sunlight, a prisoner may endure 25 years without Vitamin D.

This argument is not unique to Mr. Yorke–U.S.-based opponents of the death penalty have raised it increasingly of late. It is an odd point: that the exercise of the judicial process, with standard incarceration during that time (in Baze, for example, no one disputes that Mr. Baze shot a sheriff twice in the back before finishing him off execution-style, a crime surely punishable by incarceration), is itself a possibly cruel and unusual punishment.

One is almost tempted to say that the convicted felon generally has the power to hasten the appeals process, perhaps by years or even decades, if the pain of suffering it is itself too great. To the extent that this happens only rarely, perhaps we can conclude that convicted criminals–almost always cold-blooded murderers–are not quite convinced by the argument Yorke raises.