Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

December 16, 2006

Thoughts On The Death Penalty

by Doug Mataconis

Yesterday, executions were put on hold in two states over concerns about the manner in which the most common form of execution is administered:

MIAMI, Dec. 15 — Executions by lethal injection were suspended in Florida and ordered revamped in California on Friday, as the chemical method once billed as a more humane way of killing the condemned came under mounting scrutiny over the pain it may cause.

Gov. Jeb Bush (R) ordered the suspension in Florida after a botched execution in which it took 34 minutes and a second injection to kill convicted murderer Angel Nieves Diaz. A state medical examiner said that needles used to carry the poison had passed through the prisoner’s veins and delivered the three-chemical mix into the tissues of his arm.

In California, a federal judge ruled that the state must overhaul its lethal-injection procedures, calling its current protocol unconstitutional because it may inflict unacceptable levels of pain.

These are the latest developments in a year that has seen several challenges to the way executions are conducted in the United States:

In Maryland, a federal judge is considering the constitutionality of lethal injection. A ruling is expected next year. Officials in Missouri and South Dakota have delayed executions while lethal injection is reviewed. Oklahoma altered its procedure so that the prisoner receives more anesthesia before being executed. And in North Carolina, a federal judge ordered that a brain monitor be used to make sure an inmate is unconscious before the final drug is administered.

In June, the U.S. Supreme Court allowed another Florida death-row inmate to challenge that state’s lethal-injection procedures through a federal civil rights lawsuit, a ruling considered a procedural victory for opponents of the death penalty.

I’ve generally always been supportive of the death penalty in appropriate circumstances, but I’ve recently been having second thoughts that lead me to wonder if the state really does have the right to execute even the most violent of murderers. There are two basic areas that concern me, one based on the Constitution, and one based, in part, on what I know the legal system is actually like rather than what it should be.
When most people think of Constitutional arguments against the death penalty, they think of the Eighth Amendment and its prohibition on “cruel and unusual punishment.” There are some who argue that any form of the execution is inherently cruel and unusual and, therefore, unconstitutional. Given the context in which the Eighth Amendment was adopted, though, it is clear that the Founders did not intend to outlaw executions. Executions, and other forms of punishment that we would consider barbaric today existed both before and after the Amendment was adopted. Therefore, it is clear that, in adopting the Eighth Amendment, the Founders did not intend that capital punishment be declared unconstitutional in all circumstances.

The Eighth Amendment is also used by some, including the California Judge referenced in the article above, to argue that certain forms of execution are unconstitutional. Clearly, there are ways that capital punishment could be carried out that are needlessly cruel and which would arguably be barred under the Eighth Amendment. Something that caused prolonged torture and punishment would certainly be a candidate. As would a form of execution that shocked the public conscience, such as the type of beheading common in places such as Saudi Arabia. To argue, though, that the fact that a convict might feel some small degree of pain in connection with an execution makes it per se unconstitutional goes beyond what the Eighth Amendment was meant to address and strays perilously close to the argument that all executions violate the Amendment.

The Constitutional provisions that concern me in connection with the death penalty lie in the Fifth Amendment and Fourteenth Amendment, both of which provide that no person shall be deprived of their life, liberty, or property without due process of law. In theory, every person accused of a capital crime is supposed to be have their rights protected in the same way. In reality, it often doesn’t work out that way. Many Defendants are unable to afford their own attorneys and are, especially at the trial stage, represented by public defenders or court-appointed attorneys who are often either too busy or too incompetent to provide the zealous defense that their client is entitled to.

Take the O.J. Simpson case as an example. This wasn’t a death penalty case, but it was close. Does anyone actually think that Simpson would have walked free if he’d been represented by court-appointed counsel ? If you do, you’re deceiving yourself. Simpson is a free man today because he was able to afford a cadre of lawyers — including two of the best criminal defense attorneys in Los Angeles and a man who has been an icon among criminal defense attorneys nationwide since the 1950s — to defend him. Yes, the prosecution made a lot of mistakes in that case, but if his lawyers hadn’t known to take advantage of them, it wouldn’t have mattered.

I’m not saying that everyone is entitled to have Johnny Cochran and F. Lee Bailey represent them. What I’m saying is that we should have some doubts about the objectiveness of the legal system often depends on what kind of attorney you have, especially when we’re talking about a question of life and death.

Additionally, anyone on either side of the death penalty debate should be concerned with the question of whether even 99.99% assurance of guilt is enough to say it’s okay to kill someone. Sometimes, the legal system gets it wrong, as The Innocence Project and others have shown, innocent people get convicted all the time and, while it’s true that we’ve yet to see a case of someone executed who is later conclusively shown to be innocent of the crime, this level of uncertainty (along with the fact that it’s someone with a court-appointed attorney who is most likely to be wrongfully convicted) should lead us to think twice about just how sure we are that we’ve got the right guy.
When the state kills, it kills in all of our names. Given the way the system really is, perhaps we need to ask ourselves if that’s what we really want.

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  • http://www.kipesquire.com KipEsquire

    “it is clear that the Founders did not intend to outlaw executions”

    Why, exactly, is it presumptively more valid to assert that “the Framers did not object to capital punishment” than to assert that “the Framers did object to cruel and unusual punishment — to be defined by the society actually being governed by the document at the time the question is actually being asked, as determined by the constitutionally empowered judiciary”?

    I’m still waiting for Scalia to answer that one.

  • ThomasQ

    With all the objections to cruel and unusual punishment, I’m still wondering why it isn’t so simple this day and age to just have the person put in a room and given a gaseous anesthetic as is used to put people under for surgery but then increase the ratio of anesthetic to oxygen once the criminal is under. Surely no one can argue cruelty or inuman at that point as it is the same proceedure used for hundreds of thousands of surgeries – with the exception of later on increasing the dose to a lethal level. Or has anyone else already suggested this and been shot down? (sorry for the pun)

  • Rue-Mur

    Concern about being mistaken and “executing” (killing) or imprisoning an innocent after a quick but fair trial is a reasonable human trait. But what does it have to do with anything? Good parents hope they “got it right” after punishing a child. Good jurors hope they “got it right” after convicting an outlaw. Concern for “getting it right” is what makes humans human. Society “hopes” every woman who has an abortion makes the “right” decision. Society “hopes” that every execution the state inflicts is “right and proper” too. But, there’s a time and place for spanking a child and also for executing society’s scum bags. If we can abort a few million kids each year, we can certainly abort (execute) a few million murders, rapists, traitors, skyjackers, kidnappers, child molesters, wife beaters, perverts, etc., etc., ad nauseam. Do you want to live in a nice clean safe civilization? Or do you want to waste a lot of time and resources mollycoddling a couple million rejects. Hay! After all, no one’s getting out of here alive! We all have to go sometime! Right? Time to grow up and face the music, this ain’t heaven; it’s a little backwater planet called Earth. Heaven comes later! Here we can only do our best, one day at a time. Questions are A-OK, but you should never undermine the foundations of a society unless you know exactly what you’re doing, and why, and what the puck is going to come of it. Pull the switch! Push the plunger! Execute the scum bags! Kick ass! Move on! Play by the rules of physics AND human nature! And pray you got it right!

  • http://unrepentantindividual.com/ Brad Warbiany

    I don’t have an ideological opposition to the death penalty, but I hate to see any system that has this many false positives actually end up in executions. Supposedly the burden of proof is higher in sentencing for the death penalty, but I don’t think that’s really true.

    For example, the highly-monitored Scott Peterson case out in CA resulted in the death penalty, for what was entirely a circumstantial case. I think it’s pretty likely he did it, but without any witnesses or a true slam-dunk case, how can we give him the death penalty?

  • Doug Mataconis

    Kip,

    Given the choice, I’d rather have some objective standard applied rather than the subjective standards of one time period over another.

  • Doug Mataconis

    Rue-Mur,

    What would be so wrong with life in prison without parole ?

  • Doug Mataconis

    Brad,

    It’s the uncertainties, and the errors, that I see on a regular basis in the court system that have given me second thoughts about the death penalty to begin with.

  • http://hathor-sekhmet.blogspot.com VRB

    ThomasQ,
    That lethal dose of anesthesia could have someone brain dead with the heart still beating. I don’t know if this is the case everywhere, but that lethal dose is potassium chloride which stops the heart.
    Chemical executions are not foolproof, because it has to be tailored to the person and its not like surgery where you have an anesthetist present to monitor dosages.

  • Rue-Mur

    Doug

    What’s wrong with “life in prison without parole”? Nothing! That is, nothing if Bill Gates and his friends want to “adopt” some guilty scum bags and pay for their upkeep (prisons, meals, medical expenses, clothes, gym sets, etc.) and security. If idiot rich folks want to adopt these people, you know like Madonna bought that poor African kid, fine! But I don’t think the rest of the people in this country should have to do it. Scum is scum is scum! Abort and move on! Know what I mean?

    PS: The older you get the grumpier you get. You’ll see. (If I were you, I’d be mad at all us old farts taking your tax money for Social Security and Medicare:-)

  • http://www.belowthebeltway.com Doug Mataconis

    Rue-Mur,

    You assume that the cost of life imprisonment is more expensive than the cost of taking a death penalty case all the way to the execution stage. In fact, it’s quite the opposite.

  • Rue-Mur

    Doug

    No. Not at all Ol’ Sport. If I were king of the US of A, the pathetic trial and appeal system we’ve allowed the imperial liberal judges, Harverd lawyers, and bleeding hearts of this country to impose would be put in the trash on Monday morning. That was my original point. Idiots are screwing around with the foundations of Western Civilization without the faintest idea of what they’re doing or what the consequences will be. It happens every time ultra-left liberals get the upper hand. Put my “point” in the back of your mind and take it out again in 30 years. I have a feeling you’ll see what I’m talking about in a much clearer light. (Especially if us Boomers send you to the poor house before we pass into the history books:-)

  • http://www.belowthebeltway.com Doug Mataconis

    Rue-Mur,

    I believe that, if the state is going to kill someone, then that person deserves to have every assurance taken that their rights are protected. That they are, for example, entitled to competent legal counsel.

    Talking about the foundations of Western Civilization is, I think, a bit melodramatic.

  • Dogberry

    Rue-Mur

    What “foundations” of Western Civilisation would you be alluding to?

  • http://noangst.blogspot.com mike

    “the pathetic trial and appeal system we’ve allowed the imperial liberal judges, Harverd lawyers, and bleeding hearts of this country to impose”

    Yes, those damn rights and appeals are just so pesky.

    In principle, I agree to the death penalty. Some crimes are so brutal, so heinous, that the only correct punishment is to deprive the person who committed that act of their life. However, several things are wrong with the application of the death penalty in this country. They are best summed up in two words: Cory Maye. If that man can be put on death row, then I cannot in good conscience support the death penalty as it is currently practiced in this country.

    One last thought: I have a severe problem with the entire concept of lethal injection and the electric chair as being a “humane” way of killing someone. If the state is going to kill someone, we need to accept that fact and not try and sugarcoat it. Bring back hanging and/or firing squad.

  • http://journalspace.blogspot.com/ Robert

    The primary question in my mind is: would I be willing to accept a ‘death sentence’—at the hands of the state no less—even though I were innocent of the crime…just to preserve the principle that capital punishment ostensibly represents? My answer is a resounding NO!

    To those in favor of capital punishment, I would ask: what if one of your loved one has been wrongly accused of a capital crime? What if the innocent one on trial is you? But perhaps it’s different if you have no personal connection to those who were wrongly convicted.

    Death is final. Executing an innocent is an error that can’t be corrected…and one is too many. I don’t think that the state ought to be empowered to kill individuals, given that I’m intuitively skeptical that the state can be trusted to restrain itself in the name of individual liberty. After all, if the state can’t responsibly spend our tax dollars, or adequately educate our children, why would we trust it with our very lives?

  • Rue-Mur

    Academics love to debate the meaning of “is” and any number of other things, as do some only trying to cloud the issues. After a while, outside the classroom, many students start seeing the world without the rose colored glasses. As I suggested, put the issue away for a while; it will still be debated in 30 years. Then, see if your opinion hasn’t changed.

    There is the ideal and the real. Strive for the best solution possible, but do not waste too much time debating what should be done. Decide and act upon your decision. There are many more problems to contend with. The death penalty has been debated since Adam and Eve had to contend with Cain’s killing Abel.

    You will not answer all your questions or solve all life’s problems during your life, all you can do is live one day at a time. You will wrestle with many questions. This is one of them. In my life, I have reached the point that I believe there is still some definite value in the death penalty; and that it’s fine with me if it hurts the one being executed.

    Consider this..

    We have dreamed down Pirates,
    We have dreamed down Kings,
    We have dreamed down Tyrants,
    and the end of evil things.

    But we still have Pirates,
    But we still have Kings,
    But we still have Tyrants,
    and a lot of evil things.

    Have a good life!

  • Doug Mataconis

    Rue-Mur,

    I can honestly say I don’t understand what you mean or how it applies to the death penalty.

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