March 28, 2008
Previously, we learned that the distinction between innocence and guilt solves three of the common conceptual arguments against capital punishment. Let's continue with the remainder of these arguments.
Conceptual Objection: Execution violates the Eighth Amendment by being cruel and unusual.
The wording of the Eighth Amendment is abundantly clear: only punishments which are both cruel and unusual violate it. Thus, no matter how cruel a punishment is, if it is administered with regularity, it cannot be unconstitutional. Likewise, no matter how unusual a punishment is, if it is administered humanely it is constitutional. Since the standards for execution are uniform (at least within a particular state) and the procedure used (lethal injection, most often) is humane (especially when compared to both past forms of execution and the ways murder victims suffer), this objection is a non-starter.
The most serious arguments seem to derive from (1) the method not being completely painless; or (2) similar cases do not always receive the same penalty. Ironically, the primary reason that cases are not resolved identically is because we try so hard to confirm guilt. The conviction and appeals process produces varying results. Thus the simplest way to create more uniformity would be to execute the guilty immediately after every conviction. Obviously, this would not improve our system, although it might please certain bloodthirsty advocates of execution who are convinced that such a system would do a better job of deterring murder. Doubtless it would, but not at an acceptable price.
Finally, whatever claims might be made about the Eighth Amendment, the Fifth Amendment specifically endorses the taking of life under the right circumstances. When it says that no person may be "deprived of life, liberty, or property without due process of law," the Fifth Amendment is obviously granting permission to deprive people of any of these if due process is satisfied. Any interpretation of the Eighth Amendment that is used to oppose capital punishment must fail in light of what the Fifth Amendment so clearly authorizes. And we know that the founders were not conflicted on this point since all thirteen colonies maintained capital crime statutes. I know that some issues of Constitutional interpretation are complex, but this is not one of them.
Conceptual Objection: Capital punishment is barbaric and hateful.
According to opponents, there is a vast burgeoning awareness that capital punishment is wrong because it represents the most vicious and malicious elements of a human past we are evolving beyond. Enhancing their point is our current war against a political vision that thinks it's appropriate to punish almost any crime with public beheading. Furthermore, the angriest, meanest, most unloving people are rarely the ones who oppose capital punishment. Which kind of people do we want to be?
Frankly, the way many people talk about executing murderers demonstrates such fury and lack of love that I cringe to find myself on their side. During my years in talk radio, I've often heard sentiments such as, "Those vermin deserve to suffer"; "Hangin' would be too good for them"; "Lethal injection's for sissies"; "Bullets cost money, but at least you can reuse a rope." Such rage is powerful … and frightening.
Nevertheless, the fact that many of the wrong people support the right thing for the wrong reason does not require me to abandon supporting it for the right reasons. I'd like to talk such people out of their anger, but I'd also like to keep them supporting capital punishment for murderers in the process.
As for being barbaric, well, to me the barbarism is not in taking a murderer's life, but in refusing to do so. As for the method, I'm indifferent. My sense of retribution doesn't require suffering, and I'm unclear how gratuitous torture does a civil society much good. So, I'm basically satisfied with anything that turns a convicted murderer into a dead murderer.
Conceptual Objection: Execution is degrading to the executioner.
Even if capital punishment does no damage to the sanctity of life and no indignity to the murderer being killed, nonetheless, asking an otherwise decent human being to so ruthlessly take the life of another person damages the soul of the executioner—so the argument goes. Although I understand this concern and accept that many real executioners may feel this way, I think there is a basic misunderstanding here.
If execution is honoring of life and justice, then it cannot be the case that doing it would be harmful to the executioner. A just action cannot pollute the soul of the doer. Only unjust acts can do this. So, once the propriety of capital punishment is established, the issue of its impact on the executioner should be settled. An execution is properly understood as the only way to honor the capacity of the murderer to pay for what he has done. Likewise, allowing another human being to make this honoring possible is itself an honor, not a pollutant.
Conceptual Objection: The victim's family often doesn't want execution.
I've often seen interviews with family members of the victim who encourage leniency in sentencing the murderer. On the other hand, I've also seen interviews where the family wants something atrocious done to the defendant verging on torture. In both cases my response is the same. We neither execute people in order to satisfy the wrath of the victim's family, nor do we refrain from doing so if such wrath is not present. Our justice system is not based on the idea that we do whatever the particular victim or his family wants done, but on the idea that we do what is decided upon as right by the calm, rational deliberations of the entire society. We seek justice, not the satisfying of particular, emotionally-connected impulses. Thus, individuals do not get to decide the punishment. In fact, ignoring what such people want is an important element of keeping this practice from being the unpredictable barbarity it might otherwise be.
In the next column, we will begin looking at the final kind of objections made against capital punishment: religious.
Andrew Tallman is the host of The Andrew Tallman Show and a columnist. Andrew's show is heard daily on KPXQ in Phoenix. This is part 6 of Andrew's current series on capital punishment. Contact him at [email protected]