Put away all the death penalty machinery

November 1, 2007

As a practitioner of the death penalty, the United States is now in virtual moral solitude among civilized nations. So it's sometimes hard not to see the raging debates over capital punishment in this country as somewhat arcane, and just a little bizarre.

That couldn't be truer than with the argument, set to reach the Supreme Court this term, over whether the current protocols for lethal injection amount to cruel and unusual punishment under the Constitution. Turns out some prisoners may be feeling pain during the procedure, but they're unable to express it because they're paralyzed, and unconscious.

Now, the high court has never concluded that, say, sending 2,000 volts through a prisoner's body is unconstitutional. The justices have never hinted that sticking a prisoner in an airtight chamber with a mix of cyanide and sulfuric acid is cruel, or unusual. Indeed, even hanging has never been ruled unconstitutional in America.

States abandoned those procedures on their own, as conventional wisdom and medical science came to agree that lethal injection was a more "civilized" way of taking someone's life. So it would be a little strange, to say the least, if the court were to now say that a certain way of mixing deadly chemicals in a syringe was cruel and unusual; clever states might just revert to the chair, or the gas chamber, as an easy response, right?

But all this is a just the absurd fallout from a discussion that has itself become daffy. The debate over capital punishment seems terminally hobbled by the internal inconsistency of trying to apply the rule of law, and proper procedure, to the willful taking of life by the state. It's trying to put a square argument in a round hole.

The better course might be to follow the advice of justice Harry Blackmun, who announced in 1994 that he would no longer "tinker with the machinery of death." Stop quibbling about how, and why and with what method to do it, and begin talking forthrightly about whether the greatest nation on Earth ought to engage in behavior that you have to visit Tehran or Rangoon to see elsewhere.

It's the only death penalty question really worth answering anymore.