Wednesday, September 26, 2007

A More "Humane" Capital Punishment?

In the latest edition of the Chicago Bar Association Record (the magazine for Chicago lawyers) was an interesting and provocative article entitled "Evolution of Execution." The author made the risque implication that the guillotine is, perhaps, a less cruel and unusual, and perhaps a more humane, method of execution than lethal injection.

Now, I suppose I should go ahead and state my views on the death penalty. Namely, I'm up in the air about it. In theory, it may be an effective tool for deterrence and retribution. And there are some people who, for the best interest of society, probably should be put to death.

But in practice, I am not comfortable with the death penalty because (1) Statistics and studies have shown that there are racial inequities in the death penalty's application, (2) I don't know if it is for humans to balance mortal wrongs by administering life-ending "punishment", and (3) What about innoncent people who are put to death?

All that being said, I would be devastated if someone murdered a family member or friend of mine. Simply put, I can't say for certain that I wouldn't want the culprit dead.

Personally, I think that capital punishment should always be a nuanced debate, and should not be oversimplified with an easy "are you for it or against it" yes or no question/answer session. I think many people are as conflicted as I am over it.

However.... the fact of the matter is, our criminal justice system uses capital punishment. While the 8th Amendment to the US Constitution holds that "cruel and unusual punishment" shall not be inflicted, those words, of course, are subject to human interpretation and definition. Some argue that state-approved murder is easily "cruel and unusual" while others argue that it is not.

Some have argued that various forms of capital punishment are more cruel and unusual than other types. And, as a civil society, we should strive to impose those punishments that are not cruel and unusual- or at least, less cruel and unusual than others.

Robert Sech (in 30 Val. U. L. Rev. 381 (1995)) proposed six criteria to help determine whether a form of capital punishment is cruel and unusual (and therefore Constitutional): swiftness of execution, pain involved, reliability, dismemberment, degrading preparation, and legislative endorsement. The CBA article noted that while the guillotine passes 4 of these 6 criteria (swiftness, less pain, reliable, not degrading preparation), lethal injection passes only 2 (lack of dismemberment and governmental support).

If all of these factors are equal, the guillotine would seem to be the preferable method as it is less cruel and unusual.

Which got me to thinking..... Are we so opposed to the guillotine because it is disturbing to us, the viewers, to think of someone being beheaded? Are we opposed to it because we consider it a gruesome, outdated method of execution that reminds us of the French Revolution- where it was overused?

Do we now use lethal injection because it is more scientific and, therefore, somehow more "humane"?

Does lethal injection serve the purpose of making us feel better about killing criminals because we are doing so in a scientific and relatively painless, or so we believe, way?

But really, how painless is lethal injection?

As the CBA article cites, most lethal injections have one problem or another during administration of the 3 drugs:

"If the sedative wears off before the [drug that paralyzes the respiratory system] takes effect, the inmate is paralyzed but awake. One doctor describes the result: Under such circumstances, the prisoner will suffer an extremely painful sensation of crushing and suffocation, as the [paralyzing drug] takes effect and stops his ability to breathe. The [paralyzing drug] will paralyze the prisoner, rendering him unable to move or communicate in any way, while he is in excruciating pain."

Compare this to the guillotine, where yes, the criminal's head is chopped off, but it is extremely reliable and painless.

Does it really matter if a criminal who killed innocent people suffers a few moments of excruciating pain? Does that mean we don't have to care if he suffers?

If so, we should at least be up front about it instead of hiding behind the "cruel and unusual" punishment clause to make ourselves feel better about what others are doing to human beings in our, the "People's," name.

Yes, we live in a democratic society but should lawyers, politicians, and judges be the ones deciding what types of punishment are "cruel and unusual" based on their non-scientific understanding and lay knowledge of medicine and drugs?

Is there any way to kill people against their will that is "humane"?

Clearly, I have more questions than answers.....

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