The first official death sentence recorded by history happened in 16th century B.C. Egypt, according to Laura Randa, author of “Society’s Final Solution.” The wrongdoer, a member of the nobility, was accused of magic and ordered to take his own life. How very tidy – the state orders a death but is spared the messiness of actually carrying out the execution.
Ever since, society has searched for a more rational and justifiable death penalty and a less “cruel and unusual” way of carrying it out.
The latest agonizing is over the lethal injection of Angel Nieves by the state of Florida earlier this month in what one anti-capital punishment editorial page called a “horrific botched execution.” It took two sets of injections to kill Nieves, and he didn’t die for 34 minutes, twice the usual time it takes for a lethal injection to work. Florida, California and Maryland have now suspended executions until it can be determined if lethal injections are as painless as claimed. At least two recent studies say that the three-drug cocktail used to inject the condemned is often misadministered, causing excruciating pain.
Even if that is so, we have come a long way in how we agonize over the death penalty. At most, Nieves had 34 minutes of pain, after residing on death row for more than 20 years. How do we compare that to the pain and suffering of the person he killed?
And how do we compare it to the past?
In the most often-cited example of cruel and unusual punishment, those convicted of treason in 18th century England were drawn and quartered – dragged through town, hanged but not until dead, cut down and forced to watch their own disembowelment, then cut into fourths. Other official methods of execution have included being boiled alive, crucified, burned at the stake, thrown off cliffs and mutilated by various means. In various jurisdictions at various times, everything from cursing to stealing grapes to cutting down a tree has been a capital crime.
Today, very few crimes are felt to warrant execution. In Indiana, even cold-blooded murder doesn’t qualify unless there are “special circumstances.” And some are consumed with guilt because the last few minutes of the condemned prisoner might have been painful.
The U.S. Constitution forbids cruel and unusual pun- ishment but doesn’t define it, which leaves it necessary to consider the concept in light of society’s current state of evolution. Since that document also recognizes the death penalty, that means the method is what changes. And the pattern has always been the same. A new method comes along that is thought to be more humane – we’ve gone from hanging to the electric chair to lethal injections, with momentary flirtations with the gas chamber and firing squads. But then the humaneness of the new method comes into question, and we have the death penalty debate all over again.
Where is the debate taking us?
Most people live quiet, ordinary lives. Very few of them are rewarded for their decency by getting to enjoy long lives in perfect health, then having death come quickly and painlessly while they’re not paying attention. The end of life often comes with uncertainty, agony, fear, pain and suffering. Many today seem to want better deaths for convicted murderers than for everyone else.
And perhaps that’s where our society is headed. Only 53 people have been executed this year, down from 60 last year and 98 in 1999. We may soon join the 88 other nations that have formally abolished capital punish- ment, leaving life without parole as the maximum penalty possible. Would the criminal justice system then be “humane” enough for modern sensibilities?
Perhaps, but then again . . .
All punishment for major crimes confiscates the time of the criminals. Capital punishment merely takes all of it all at once. Life without parole is just as much a death penalty, taking all of people’s time but stretching out the punishment. The condemned know all their tomorrows will be as bleak and barren as all the days that have come before and that there is no hope of change. That is, in many ways, far more cruel than just immediately killing the killers.
Much of the agonizing about the humaneness of executions is more about our suffering than that of the condemned. We want to mete out punishment, but we don’t want to think about how untidy it might be. Electrocutions were quicker and more reliable than hangings. The gas chamber disfigured the body less. Lethal injections make us believe those executed are just going peacefully to sleep.
It is civilized to have qualms about capital punishment and to worry about whether its use is consistently and fairly applied and whether its forms are overly cruel and unusual. But we will either have that maximum punishment, or we will not. As long as we believe there are crimes for which no other punishment seems suitable – the killing of a guard by someone already serving life without parole, for example, or the torture and killing of children – completely giving it up should be thought about long and hard.
And whatever we decide, we shouldn’t flinch from its implications.
Though “evolving standards of decency” might change how much criminals must endure, the way a civilized society stays civilized is to make sure that those who cause suffering also must suffer.
By Leo Morris for the editorial board