Thursday, April 17, 2008

Capital Idea

So it's been awhile since I blogged, and it seems a little strange to jump back in with this particular discussion, but some news from this morning seems worthy of discussion, so why not. The news in question: the International Herald Tribune reports that the US Supreme Court has upheld as constitutional Kentucky’s preferred method of capital punishment, a particular form of lethal injection.

The Supreme Court's ruling is, prima facie, a blow to the anti-death-penalty campaign in the U.S. Having seemingly jettisoned as unpopular the argument that capital punishment is in itself unconstitutional, anti-capital punishment forces had turned their hopes to outlawing the death penalty in its variously practised forms as inhumane. It is a telling fact about the American justice system that in this particular case, Baze v Rees, the prisoners were arguing not that the death penalty or even lethal injection per se breached the Eighth Amendment, but that Kentucky's particular form of lethal injection, in which three separate drugs are administered, was unconstitutional. Lethal injection, once touted as a humane method of killing people, has come under all sorts of scrutiny in recent years; there is a body of evidence that suggests that it can be both a slow and a painful way to die. The procedure used in Kentucky also happens to be the method of choice for most of the 38 states in which capital punishment is still an option. As such, the last few months have seen a moratorium on capital punishment in the US while the honourable justices considered, once again, the issue of the death penalty vis-à-vis the Bill of Rights.

Well, that's over. By a 7-2 majority, the court reaffirmed Kentucky's use of lethal injection as constitutional, because there's not enough proof that it causes undue suffering. The standard by which the Court adjudicates the cruelty of a given punishment is, given the subject, remarkably clinical. "An execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain," the court ruled sternly. "Judged under that standard, this is an easy case". Right. Don't lose any sleep over it, then. It's only somebody's life.

Not just somebody, either. As Kentucky, so go the other States: death is back. It looks like a big step back for the anti-death penalty movement as a whole; which has claimed a number of judicial victories in recent years. Certainly, it is a great personal tragedy for the condemned prisoners in question, Ralph Baze and Thomas Clyde Bowling Jr.

And yet… and yet. In Justice Stevens' opinion – an assenting opinion, mind you – we find the resurgence of a seemingly outdated idea. After reluctantly agreeing to the majority view that lethal injection is not, as far as killing methods go, particularly cruel, Stevens devoted the second part of his "concurrence" to a deeper question. Could it be, he remarked, that the death penalty itself is unconstitutional? Does capital punishment in any form breach the eighth amendment's ban on "cruel and unusual punishment"?

In the context of recent US Supreme Court history, this is more radical than it might appear. To someone who has never known an execution in her own society, the idea of debating the humanity of this or that method of killing someone is more than a little dissonant. But that's the way the debate in the US has been framed. Even Justice Blackmun's famous refusal to "tinker with the machinery of death" was based on pragmatic, rather than philosophical, objections: fairness of trial, consistency of application, and the like. Did Blackmun believe that killing people was always cruel and unusual? Possibly, but it's impossible to tell from his 1994 dissent. "The problem", he concludes, "is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution".

To those of us who were unaware that the Constitution required any sentences of death, the opinion of Justice Stevens comes as a great rhetorical, if not legal, progression. Stevens was one of the justices who upheld the death penalty in 1976, and he invoked the three "societal purposes" that were used in that case to justify the death penalty: incapacitation, deterrence, and retribution. Since then, Stevens notes, there has been considerable revision of public opinion on all three counts. The first two he deals with easily: the evidence continues to mount that the remote possibility of being put to death deters nobody; and life without parole, enforced properly, is nearly as incapacitating as killing somebody and a lot less traumatic besides.

That leaves us with retribution, and, as Stevens notes, "it is the retribution rationale that animates much of the remaining enthusiasm for the death penalty". Stevens' argument here is more nuanced: vengeance, he says, is an innate human drive, and the death penalty is motivated primarily by the desire to inflict on the criminal the kind of suffering that he (and it's usually a he) inflicted on his victim. But by progressively reducing the level of suffering which accompanies an execution, the judicial system has, in effect, done away with the state's ability to inflict suffering on the offender equivalent to the suffering experienced by the victim. (Almost no non-state murderers anaesthetise their victims before killing them.) Thus, says Stevens, the retribution justification has been diminished just as surely as the other two.

This seems like convoluted reasoning, and it earned an acerbic retort from the majority: "we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution." But what Stevens is getting at - which he says, much more clearly, a little later in his opinion - is that the human thirst for revenge is unquenchable, at least by any action that would leaves the state's humanity and moral authority (such as it is) intact. And if it's unquenchable, under current laws, it's pointless to try to quench it. So the retribution rationale is undermined, not because it's immoral, but because it's unachievable.

Having thus dismissed the rationale he endorsed in 1976, Stevens was unequivocal on the utility of the death penalty, describing it as "the pointless and needless extinction of life with only negligible social or public returns." It took him awhile to get there, but Justice Stevens is entirely correct. Two hundred years after the eighth amendment was ratified, state-sponsored murder remains hardly less cruel and significantly less usual. It has no place in a civilised society, regardless of the crime, regardless of trial procedures, regardless of the method of execution.