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Punishment at All Ends

By William F. Buckley

Consider the problems of the Supreme Court justices. They are bound, now, to decide whether capital punishment by the injection of chemicals is banned by the Eighth Amendment, which protects us from "cruel and unusual punishment." A little background will help.

Capital punishment is a controversial practice. The European Union has ruled against it in any form, and the operative presumption is that Europe is more refined than America in handling questions having to do with crime and punishment.

Twelve U.S. states no longer impose capital punishment. It is not easily ascertained whether these states made that decision owing to pleadings that advanced the case for humaneness or whether capital punishment was edged out by empirical arguments having to do with cause and effect.

A list of those states that no longer use capital punishment does not immediately suggest a sensitivity distinguishing them from states that still do exact capital punishment. Here are the 12: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin.

Arguments against capital punishment nearly always invoke the Eighth Amendment, as indeed they do in the case now pending, Baze v. Rees. Lawyers for the two gentlemen in the death house in Kentucky, Ralph Baze and Thomas Clyde Bowling Jr., contend that death by injection is in fact cruel and unusual. The injection process involves three chemicals: a barbiturate to render the subject unconscious; another chemical that induces paralysis; and finally, potassium chloride, given in a dose that brings on death.

The philosophical narrative here is that changes in the means of effecting capital punishment have reflected evolving public sensibilities. "A number of previous capital cases have tested the laws to the limit," writes Nicholas Wapshott in the New York Sun, "as a result of which the method of taking life has had to be changed. Hanging, asphyxiation by gas and electrocution have been largely deemed to provide an ancillary and therefore wholly illegal 'cruel and unnecessary punishment' and have over time been replaced by the three-chemical method."

But, Mr. Wapshott goes on, "there have also been a string of cases in which the injection method has proved to have been so drawn out, or so incompetently administered, ... that the injection method itself has in some jurisdictions been discredited and abandoned."

Meanwhile, Supreme Court watchers note that the outcome of this case might be affected by a decision the court rendered in April. In Gonzales v. Carhart, the court upheld the federal ban on partial-birth abortion. Critics argue that opposition to abortion and euthanasia should go hand in hand with opposition to capital punishment. But Gonzales v. Carhart was decided on narrower grounds than simply the sanctity of life, and so the fight goes on.

In Baze v. Rees, the justices, at the prodding of the two Kentucky killers (Baze murdered a sheriff and his deputy; Bowling shot to death a young couple and wounded their small child), are up to their arses in semantic questions. The Eighth Amendment prohibits punishment that is cruel and unusual. What if the punishment is merely cruel? Or unusual? Does it need to be both at the same time in order to qualify for Eighth Amendment protection?

The Kentucky court ruled that "conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain," but adds that "the prohibition is against cruel and unusual punishment and does not require a complete absence of pain."

Here is a lapidary example of the confusion brought on by judicial expansionism. Objections to capital punishment have been widely voiced over several generations, and these objections have been democratically conjugated in changing practices. Year after year, fewer capital sentences have been handed down, fewer executions scheduled. One after another, a dozen individual states have abolished the practice.

Why did the Supreme Curt have to get into this act? It is the states' legislatures that need to affirm, or disavow, the degree of punishment. If the measure of public disapproval of murder is best reflected by the severity of the consequences, why can't legislatures continue to be left free to act? Or can that happen only when pain is rendered constitutional?

Copyright 2007 Universal Press Syndicate

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