The Case Against the State’s Power to Kill

Cruel and Unusual?

The Eighth Amendment to the Constitution is probably the most frequent battleground for the debate on capital punishment, but only because the argument is on this score is never resolved in a satisfying way.

Opponents of the death penalty say that it is cruel and unusual punishment, and the proponents say, “No, it isn’t,” to which opponents reply, “Yes, it is.”

In other words, debates on the constitutional issue more frequently resemble a Monty Python sketch than a substantive discussion on the issue.

If you approach the issue from the purely “strict constructionist” view of the Eighth Amendment, the argument is cut-and-dried. After ratifying the Bill of Rights, the framers of Constitution did not immediately turn around and say, “Sorry, guys, but we’ve got this new amendment. No ‘cruel and unusual’ punishments and all that. Have to stop hanging people.” Clearly, contemporaries of Jefferson and Madison did not view capital punishment as both “cruel” and “unusual” enough to fall under the Eighth’s prohibitions.

But even if the wording of the Amendment has remained static, as it has, and the words “cruel” and “unusual” retain their original meanings, which they do, the twenty-first century is not the eighteenth, the nineteenth, or the twentieth. Our concepts of cruelty have evolved with time. Even the most blood-thirsty, “kill-em-all-and-let-God-sort-em-out” advocates of today would blanch at what was common practice a hundred or more years ago.

Also, what was common practice a hundred years ago, namely governments executing people, is now definitely more unusual that it once was. The United States is only one of a handful of nations that include killing as part of its criminal justice toolbox. The others are not exactly on the honor roll when it comes to human rights. At least, the U.S. can make the legitimate claim that we earnestly seek the most humane methods to put people to death and that neither stoning nor beheading are in our repertoire.

But in our quest for the most “humane” way to execute a prisoner, have we gone down a rat hole of our own good intentions? The current favored method of killing in the corrections system, lethal injection, is not a carefully designed medical-procedure, but a jerry-rigged misuse of drugs designed for very different purposes. The manufacturers of many of these drugs are not happy with their use in this fashion and have taken steps to keep their products from being sold to state departments of corrections.

This has forced states determined to execute their prisoners to seek out substitutes for the usual drugs used in their “execution cocktail,” without knowing for certain if they will work until they actually try to kill someone with it. As manufacturers cut off the supplies of even these substitutes, the relevant government agencies have turned to what are known as “compounding pharmacies,” a less-well-regulated arm of the pharmaceutical industry with an imperfect record for quality control.1

This turns virtually every execution into an ad hoc medical experiment on a human subject. If the experiment is “successful,” the subject dies peacefully. If not, the subject dies a prolonged, excruciating death. Several recent experiments, especially in Ohio and Oklahoma, have been very much not successful.2

Say what you will about firing squads, but at least the instrument of death is not being misused against the wishes of its manufacturer. Also, the results are a lot more predictable. Some might say it is harder for the witnesses to watch, but is it really harder to see a man shot through the heart than it is to watch him gasping for breath for an hour when he is supposed to be unconscious?

Hanging also seems barbaric by contemporary standards, but at least there was a well-understood science behind it. So much weight on the end of the rope and so many feet of a drop equaled a broken neck.

I would hardly advocate going back to these now largely abandoned methods of executing a death sentence. I only ask that we stop deluding ourselves that our present technology is in any way an improvement over its predecessors. Perhaps it’s time to stop pretending that there is a humane way to execute a person.

  1. FDA finds widespread safety issues at compounding pharmacies []
  2. 2014 Is Already the Worst Year in the History of Lethal Injection []

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