This contribution is not about trying to convince the reader whether the death penalty is right or wrong. Personal opinion on this topic is so strong that it is virtually futile to try to “convert” an individual from one position to another. This blog is about whether the prevalent form of execution in the United States should be considered “cruel and unusual punishment.”

There are 38 states that still have the death penalty, and all but one use lethal injection. The exception is Nebraska which still uses the electric chair. More on “old sparky” later. Lethal injection consists of administering a so-called “cocktail” of three ingredients into the bloodstream via a needle. The first of a trio of drugs renders the convict unconscious; the second ingredient paralyzes the muscles; the third stops the heart.

Those of us who have undergone major surgery might well ask, “What’s the big deal?” You start counting backwards from 100 or some given number, and the next thing you know, you wake up in the recovery room. Any pain or discomfort begins then, and is associated with the surgery. But death penalty opponents (and, incidentally, more and more death row inmates) contend that the procedure, even when properly administered, is exceptionally painful – so much so that it violates the inmate’s constitutional rights.

The last time the Supreme Court ruled on the constitutionality of a particular form of execution was more than 100 years ago. In 1878 the court upheld the firing squad as an acceptable means of administering the death penalty. The fact that the court is now going to consider the legality of lethal injection has resulted in a de facto moratorium on all executions nationwide. The ruling is scheduled for early 2008, with a decision probably sometime in the middle of the year.

The Supreme Court ruled against the death penalty in 1972 because the judges thought it was administered in an “arbitrary and capricious” manner. It was reinstated four years later and since then, according to the Death Penalty Information Center, there have been more than a thousand executions. Lethal injection was used in 927 instances, 154 were by electrocution, 11 by gas chamber, three by hanging, and two by firing squad.

It remains unclear as to why the Supreme Court has decided to hear the lethal injection issue now. Just seven years ago, the court ruled against hearing an appeal that the electric chair was a form of cruel and unusual punishment. Indeed, “old sparky” has been responsible for a number of botched executions which can best be described as horrifying. Officials and spectators observed these clumsy incidents involving the electric chair, and were convinced that the inmate suffered unnecessary pain. Yet the electric chair remains in use in Nebraska.

Why, then, has lethal injection come under the Supreme Court’s attention recently? No inmate has returned from the dead to testify that he or she suffered unbearable pain. Witnesses to executions by lethal injection have observed that the inmate “twitched” of “grimaced,” and in some cases, this was interpreted by the witnesses as suffering. As a result, more and more death row inmates are beginning to challenge their imminent executions on this narrowly-defined issue.

State and federal courts have begun to interpret the Supreme Court’s ambiguous decision to rule on these challenges as a signal that all executions should be put on hold. Thus, many death row inmates who have postponed their executions by 20 years or more by appealing their convictions and the method of carrying out the sentence, may end up with life sentences instead. In some cases they might even appeal the life sentence, arguing that it was not the original or intended punishment. Over the span of a couple of decades, they might contend, they have become rehabilitated and eligible for parole.

So the Supreme Court’s decision to rule on the constitutionality of lethal injection is like the proverbial peeling of an onion – one layer is removed, only to discover that many more remain. If the ruling is that lethal injection does violate the constitution because of the suffering involved, it does not rule out execution, only the method used. The ingredients of the “cocktail” can then be changed to make it more acceptable. The current issue of The Economist notes, “No one knows how the Supreme Court will rule this time. If it bans this combination of drugs, which was adopted without much research, states can presumably come up with some different ones. One idea is to execute prisoners with a single overdose of barbiturates, the same way that vets put animals to sleep.”

One of the onion layers will also involve the personal interpretation of the constitution by each of the judges. At the time the constitution was written, cruel and unusual punishment often referred to the type of pain one would not inflict on a dog, a horse or a farm animal. Another onion layer is the intrusion of intellectual elitism of an individual judge. As a recent article by William F. Buckley in Real Clear Politics pointed out, “When the death penalty was eliminated in Great Britain, seventy percent of the British population wanted to continue to impose death sentences for capital crimes. How do we register our commitment to safeguarding the innocent, if not by bringing on death to the killer?”

A number of the murderers on death row have committed crimes so unspeakable that the court transcripts have to be read, so to speak, through spread fingers. There are the mass murderers, those who tortured before killing; those who molested and raped young boys and girls before killing; those who left families, friends, and relatives with a lifetime of nightmares and awful images to live with for the rest of their lives. Can the cruel and unusual punishment they inflicted on others be compared to the discomfort of an injection?

If the justices of the Supreme Court ever reach the final layer of the onion, it might read something like this: we have a contract and a solemn agreement to obey certain fundamental laws if society is to survive. The government, in turn, has a contract with us, including protection against those who would harm us. When the government fails to honor its end of the contract, and we or our loved ones are slain, the only redemption is to protect posthumously the dignity of the victims – by taking the lives of those who took theirs.

– Chase.Hamil

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