The Penalty Of Death

Let's get one thing out of the way right up front: Capital punishment itself is clearly Constitutional:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger...

That's the Fifth Amendment to the Constitution of the United States, just in case you haven't seen its text lately. (Yes, I added the emphasis; the Founders were terrible at HTML.) So the Supreme Law notes and tacitly permits execution, though the Eighth Amendment, which forbids "cruel and unusual punishments," would seem to qualify its application.

This, you may be assured, is highly vexing to the Left. Liberals' campaign against the death penalty has a long lineage, and despite never having acquired majority backing has succeeded in reducing the use of execution in several ingenious ways.

The most successful attacks on the death penalty have been through Eighth Amendment arguments against execution's "cruelty." If we must take a man's life, the argument runs, at least we can do so without making him suffer. This line of attack has been used to invalidate every method of execution ever employed in the United States:

• Hanging;
• Firing squad;
• The electric chair;
• The gas chamber;
• Lethal injection, by certain drugs.

...and has succeeded in preventing states that still employ the death penalty from using them, on the representation that they're unnecessarily painful, and therefore unConstitutionally cruel. In the case of lethal injection, which is still employed in some states, the assault has focused on the particular drugs used to terminate the condemned man's life. As effective drugs have been eliminated from the execution pharmacopeia, less effective ones have come into use, with the paradoxical effect of increasing the visible suffering of the condemned, thus strengthening the argument against capital punishment per se.

Wesley Pruden of the Washington Times presents us with some recent horror stories:

The executioners of Joseph Rudolph Wood, 55, were so long about it earlier this month — nearly two hours — that his lawyers had time to file an unusual emergency appeal to the U.S. Supreme Court in mid-execution for relief on humanitarian grounds. “He has been gasping and snorting for more than an hour,” his lawyers told the justices. “He is still alive.” The justices, perhaps eager to finally get away for their summer holiday, declined to stop it.

Wood began gasping shortly after the sedative midazolam and the painkiller hydromorphone were administered. Witnesses said Wood’s mouth dropped open, his chest expanded dramatically and then contracted, and they counted 600 violent gasps over the next 90 minutes. The director of the state Department of Corrections said he “conferred and collaborated with our IV team members and was assured that the inmate was comatose and never in pain or distress.”...

Ohio put Dennis McGuire to death in January with a cocktail of new and untested drugs that, if not mixed properly, cause unimaginable pain. McGuire screamed that he felt as if his body was on fire, and death did not follow his gasping and writhing on a gurney for 25 minutes. The Ohio attorney general had argued earlier, when his lawyer tried to block the execution with the untested drugs, that the U.S. Constitution bars cruel and unusual punishment but “you’re not entitled to a pain-free execution.”

In April, Oklahoma tried for an hour to execute Clayton Lockett, a murderer and a rapist, while he lay convulsing and writhing on a gurney, and never succeeded. He died of a heart attack while waiting for the state to get on with it.

Pruden notes that such events have resulted in a significant conservative reaction against capital punishment:

Polls show that 80 percent of Republicans favor the death penalty, but a small but expanding group of conservatives argue that fealty to authentic conservatism leads away from capital punishment. Some of the names, ranging from Jeb Bush to Newt Gingrich to Rick Perry, are surprising. The death penalty is as popular as ever with many conservatives, but methods of dealing death are not. Inefficiency inevitably costs money, and wasteful government inefficiency, after all, is not a conservative virtue.

The reasoning will strike many persons as cruel in and of itself. Abolish the death penalty because it's inefficient? But keeping a condemned man around to the end of his natural life is pretty inefficient too! Add to that the extreme mental cruelty of imposing lifetime confinement without hope upon him, and the shadow of the Eighth Amendment begins to creep across the doorsill once more.

Constitutional or not, the Left's attack upon methods of execution has made deep inroads into Americans' willingness to have even the most vicious murderers put to death.

---

Is capital punishment something we ought to allow, Constitutional or not? Have two somewhat contrasting views on the subject. First, the argument against it:

"Deserves death? I dare say he does. Many that live deserve death. And some die that deserve life. Can you give it to them? Then be not too eager to deal out death in the name of justice, fearing for your own safety. Even the very wise cannot see all ends." [From The Fellowship Of the Ring]

And for the contrary view:

"Once you know a man deserves to die, you have to kill him. If you don't, you're committing a crime against everyone who doesn't deserve to die. If you get him down but can't bring yourself to do it, and he gets up off the mat and kills you instead, you're only getting what you deserve yourself." [From On Broken Wings]

No, "be not too eager to deal out death." It's very good counsel. But we know that there are times when self-defense, or the defense of innocent others, requires the taking of a life. If it's licit at such times, why wouldn't it be permissible as a matter of dispassionate justice? Surely execution -- as a method of retribution for murder, at least -- is proportionate and confers protection upon anyone else the condemned might have menaced were he allowed to live.

The joker in the deck is, of course, that there's no way to reanimate a wrongly executed man. Any other form of punishment can be compensated for to some extent, should it be discovered that it landed upon an innocent party. But a dead man is beyond all such things.

The imperatives of justice, the needs of the bereaved for catharsis, and the putative security of other innocents must be balanced against two countervailing theses: cruelty, and the possibility of a mistaken execution. And though for many centuries the scale has tipped toward execution for the most heinous crimes, it begins to seem likely that sometime in the foreseeable future it will swing in the other direction. Whether we'll come to regret that, only time will tell.