The dust has hardly settled on the last media flare up about the issue of capital punishment when yet another botched execution draws attention to “cruel and unnatural punishment.”
The emotionally charged but threadbare arguments for and against capital punishment are avidly debated but the issue invariably remains solidly unresolved. I wrote a blog titled, Hammurabi and the Religious Right (March 14, 2011) that posits a radical departure from the severely dichotomous judiciary positions on capital punishment held by the federal government, states, and individual Americans. If you read that article, you almost certainly will disagree with me about that radical suggestion.
However, rather than expanding the brief and simple message of my Hammurabi blog, this blog presumes the legal execution of capital punishment and its gruesome consequences when the execution is botched. When that happens, the media and public are morally aroused. At the center of a white-hot moral crucible is the dictum of the Eighth Amendment that forbids “cruel and unnatural punishment.” And therein lies the ultimate example of the lack of precisely considered judgments about this and many other significant issues.
Obviously, “cruel and unnatural punishment” is meant to describe punishment that is designed to be cruel and unnatural. In no way is it meant to include the consequences of an accident during a lethal procedure.
[Note: Reports of a recent botched execution included a description of a prolonged period of suffocation suffered by the prisoner. The suffocation was not intentional. Neither was the suffocation I experienced when coming out of anesthesia after my heart bypass surgery. I was fully conscious and knew that I was unable to breathe. I distinctly remember that I had no fear of death but was terrified by the thought that pain was to follow my inability to breathe in a seemingly airless room. I don’t know how long that state of uncertainty lasted in real time, but it seemed like forever to me. No air to breathe…what was next?]
Of course I don’t base my opinions about botched executions on the single personal experience I’ve described in the note above. But consider the fact that all of us are constantly subject to accidents. The Constitution cannot protect us from being pinned and in great pain while trapped in a crumpled auto or by a pile of bricks and steel. This is not an argument for capital punishment. But then, neither is the Eighth Amendment against it.
Every debate or comment I listened to on television or read online in response to the latest botched execution made no attempt to sharply differentiate between a designed and an accidental event during an execution. Diametrically opposed debaters implicitly accept and equate “cruel and unnatural punishment” with accidents. That means that they believe capital punishment itself is cruel and unnatural.
If that’s the case, either the Eighth Amendment requires adjustment or executions might be designed to be instant either at the first sign of a botched event (a gunshot to the head guarantees instant death) or the standard form of executions might initially be instant death by gunshot. Offering a prisoner the choice of instant death or death by lethal gas or injection (or any other method of execution) with a gunshot backup is another possibility just in case something goes wrong.
I read of a botched execution that triggered a heart attack, which in itself is neither unnatural nor cruel. Yet, if instant death had been an option at that botched execution, the prisoner need not have suffered a heart attack. I’m not advocating “soft” executions or the abolishment of capital punishment all together, but I do question equating cruel and unnatural punishment with accidents when debating the issue of capital punishment.
Given the profundity of this issue and the dilemma it presents, the suggestion I posit in Hammurabi may not be all that radical after all!
Reflections and commentaries by the other Mario Martone 