The Death Penalty Goes to Court

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Only in America can two death row inmates, convicted of cold-blooded and gruesome murder, make their case to the top court in the land that they should be executed only by professionals and in a painless way.

In 1992, Ralph Baze used an assault rifle to kill a sheriff and his deputy while they were trying to arrest him. In 1990, Thomas Clyde Bowling Jr. shot and killed a young couple and wounded their 2-year-old son in a parking lot for no apparent reason.

Today, the United States Supreme Court will be hearing arguments from Mr. Baze and Mr. Bowling who claim the three-chemical mix of drugs used in state executions in Kentucky and in most other states constitutes cruel and unusual punishment under the Eighth Amendment. They point to recent cases like that of Ohio inmate Joseph Clark who was conscious for almost an hour before succumbing to the injections.

Although the court will not be examining the constitutionality of capital punishment (only whether the current concoction of drugs causes a risk of unnecessary pain and suffering and therefore should be substituted with a more efficient poison) the case will reignite discussion over its moral and political justification in a modern world.

Pro-death penalty advocates will have a heyday today mocking a justice system that seems to be bending over backward to make dying “easy” for criminals who once tortured their victims. But all the goading and laughing may end up turning public opinion further against their cause.

Astute foes of capital punishment will seize the moment to show Americans what state execution looks like up close and in person. Instead of leaning on philosophical arguments against the practice, they will emulate the most successful strategy to date of the pro-life movement — use Supreme Court arguments about partial-birth abortion (seemingly a sidebar issue, much like today’s case) in order to describe and depict what “interrupting a pregnancy,” any pregnancy (read here, all capital punishment), is really all about.

For many conservatives of an older generation, the show and tell exposition of the inner workings of capital punishment will conjer up positive sentiments of justice and retribution — the state fulfilling its God-given right and duty to protect citizens and dish out punishment. But this kind of in-your-face color commentary will make many younger conservatives reconsider their parents and their party’s wholehearted embrace of a practice most of the civilized world has abolished and considers barbaric.

I find myself lodged somewhere in the middle of this generational divide, as my position on the topic would suggest. I feel little empathy for Mr. Baze’s and Mr. Bowling’s demands for a painless execution and I find preposterous the notion that the drafters of the Eighth Amendment would have applied it to Kentucky’s procedure of a three-drug lethal injection. But I find equally perplexing and unconvincing the arguments of my parents’ generation in defense of capital punishment as a whole in the United States of America.

We can break down pro-death penalty arguments into two major groups: deterrence and retribution. The deterrence argument points to data (most of which is disputed by anti-death penalty activists) that shows capital punishment protects innocent lives by paralyzing would-be murderers with fear. The retribution argument, on the other hand, says government is obligated to restore the balance of justice in society by punishing criminals with sentences proportional to their actions. And what other punishment, besides a death sentence, comes close to matching cold-blooded murder?

In my opinion, neither of these two arguments holds water. In the case of deterrence, it is a big mistake to evaluate an action only by its positive or negative consequences. Being relatively sure, for example, I will save many lives by killing my neighbor who is a very bad driver and puts people into danger every day on his way to work, does not justify my plan to send him a cyanide-laced holiday drink.

“Wait,” one could say, “that’s different … your neighbor is not a mass murderer!” That is precisely the point. Deterrence alone is not a good argument. Most people combine in their minds deterrence with the argument for retribution. This hybrid argument goes like this: “The guy deserves death anyway … and if we execute him publicly, his ill fate will be an example to others.” Certainly, from a moral perspective, this mixing of retribution (“the guy deserves death”) with an intention for deterrence of future crime (“his ill fate will be an example for others”) is more palatable.

More palatable, but it’s still not convincing, as I see it. It’s not convincing if we believe in the inestimable value of human life (precisely because it is human) and the ever present possibility (hope) for redemption as long as free will is in play.

The argument of an older conservative generation — a man loses his personal worth when he commits heinous crimes: “The guy is an animal and has no rights!” The still developing response of the younger generation is the very important distinction between a man’s moral worth and his intrinsic worth. In other words, when Mr. Baze and Mr. Bowling did their terrible deeds, their moral worth hit rock bottom, but even so, they never stopped being human beings, and therefore they never lost their intrinsic value (Christian theology affirms this philosophy by attributing man’s worth to having been made in God’s image and likeness.)

It would follow that if a human person’s intrinsic value, in spite of his greater or lesser moral value, is so precious — inestimable — no government should use it as a commodity of retribution, and certainly not as a mere tool for deterrence.

It seems logical the one exception to these arguments against capital punishment would be the case of a society unable to protect itself against an aggressor in any other form. Imagine, for example, a tribe in the middle of the Amazons that does not have the technical ability to keep an aggressor locked up for life. In this rare case, I could see how capital punishment could be considered a legitimate act of self defense, an act of political virtue.

All this said, I’ve got a hunch we still like the death sentence in America because it makes us feel good. Revenge is sweet.

Or is it?

God bless, Father Jonathan
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