Killing them softly: meditations on a painful punishment of death.

• Author: Blecker, Robert
• Position: The Lethal Injection Debate: Law and Science

THE CURRENT CONTROVERSY: A FRAGMENT

Controversy continues to swirl around lethal injection. Opponents emphasize the real risk of ill-trained corrections personnel botching executions and turning capital punishment into official rituals of torture--inhumane and unconstitutional. Worse, pancuronium, a paralytic agent, masks the real agony of the condemned who appears to die in peace without pain. Supporters counter that although some risk of unintended pain remains, when administered properly by physicians or other trained personnel, lethal injection produces a quick, painless, and constitutional death.

A de facto national moratorium on executions occurred while the Supreme Court considered the constitutionality of lethal injection in Baze v. Rees. (1) Of course, many opponents of lethal injection simply detest the death penalty itself, however administered seizing on the remote but real possibility of a state-administered, painful execution to oppose lethal injection, and every other method as unconstitutionally "cruel and unusual punishment." (2) Others reject the death penalty, fearing that states will execute the innocent or be spurred by racist motives. Some admit that monsters may deserve a painful death, if only the government could be trusted to determine who and how. Still others, while opposing the death penalty itself, may recognize that rightful punishment must be painful in order to be punishment.

Some critics point out, however, that people are largely driven to destructive acts by forces outside their control or beyond their responsibility. Public safety may require us to incapacitate, and those confined may feel uncomfortable. But, they insist, we always punish most reluctantly, and treat civilly those who threaten us until we can cure or rehabilitate and then release them, all this time striving with compassion to ease their suffering as much as possible. This camp generally acknowledges painful punishment as an unpleasant necessity, but urges us to make it as painless as practical. At one extreme, psychiatrist Karl Menninger, in The Crime of Punishment, acknowledging that punishment requires intentionally inflicting pain, famously called upon society to abandon punishment entirely. (3)

At the other extreme, the most indiscriminately vindictive call for revenge, angrily demanding that the state kill all murderers, and do it painfully. Other death penalty supporters, however, insist that only the "worst of the worst of the worst"--brutal and sadistic mass-murdering rapists, for example--deserve to die. Death penalty supporters, following Immanuel Kant, demand a mostly painless execution process, insisting that simply killing the condemned balances the scales. (4) These retributivists may derive satisfaction from imagining (however contrary to fact) the condemned suffering every day for years on death row, remorseful for his murder, haunted by ever-pressing thoughts that one day state agents will kill him prematurely. They may believe this drawn-out, anguished death-wait requires no additional pain in the dying process. Others, however insist that the most brutal and vicious killers deserve to experience physical pain while they die.

Almost everyone accepts that imprisonment should be psychologically and physically unpleasant. When it comes to capital punishment, however, as the Supreme Court consistently declares in the modern era, seemingly death is different. (5) Deeper reflection, and two decades documenting daily life inside prisons and on death rows in four states, however, convinces me otherwise. Our wide spread revulsion at painful executions and the rising demand for a guaranteed painless death penalty is but the most visible part of a deeper disavowal of pain, and therefore punishment itself.

Difficult questions of pain and punishment can divide us starkly or subtly, but mostly they lay unexposed, unexplored, overlooked, and overshadowed in the death penalty debate itself. But then the Court commanded us in Baze to put aside the question of capital punishment per se, and focus instead upon the constitutional limits of painful punishment. Thus, we take as given that the state may execute some people, and ask instead, how shall we kill them? How should it feel to die?

Earlier eras and other cultures in the bloodthirsty history of humankind have indulged in mass torture, mindless vengeance, and boundless, misdirected, collective hatred. In the United States today, however, reacting officially to individual child killers or serial rapist murderers, "it is now far more likely that people should witness acts of grievous cruelty ... with too little hatred and too little desire for deliberate measured revenge than that they should feel too much." (6)

We must no longer haphazardly employ execution methods that seem indifferent to the experience of dying, attempting to obliterate from memory the agonizing death of the victim which gives us the right, if not the obligation, to execute the aggravated murderer. Whether or not we examine it carefully or declare it openly, most of us assume that simply killing the condemned balances the scales by inflicting enough pain. Can we not soberly ask ourselves whether, in certain cases, death alone is enough?

Punishing by torture violates human dignity and the Constitution rightly forbids it. But, by fully rejecting all pain in punishment, we abandon punishment itself. The time has come to humanize the punishment of death--not by abolishing it, nor bureaucratizing it and shamefully laying responsibility elsewhere, but by infusing it with concern and emotional denunciation.

1. "PUNISHMENT" MUST BE PAINFUL

   From the beginning, as defined and experienced, etymologically and existentially, "punishment" and "pain" have been inseparably connected. The very word "pain" comes from the ancient Greek poine, the Latin poena meaning penalty, or punishment. (7) As a noun, "punishment" means "suffering, pain, or loss that serves as retribution." (8) H.L.A. Hart lists pain as the first of five elements that constitute "the standard or central case of punishment." (9) Our commonsense notion of punishment reflects this: punishment involves intense physical and/or psychological discomfort. Whether the condemned feel their pain physically or psychologically, their punishment, to be punishment, must and should be painful.

   "All punishment in itself is evil," Jeremy Bentham declared, precisely because it is painful. "It ought only to be admitted in as far as it promises to exclude some greater evil." (10) For the utilitarian, pleasure is good; pain is evil, plain and simple. Accordingly, society rationally only inflicts pain to prevent greater pain, by deterring others, incapacitating or reforming the dangerous offender, all for the public good. Therefore, utilitarians firmly believe society must never inflict pain for the sake of the past. Dead victims cannot be brought to life; they are beyond all feeling.

   "The end of punishment, therefore, is no other, than to prevent others from committing the like offense," declared Cesare Beccaria. (11) An Essay on Crimes and Punishments, first published in 1769 in Britain and 1773 in America, (12) set the perspective of America's founding generation on punishment. "Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal." (13)

   Beccaria resolutely rejected the death penalty. His Essay remains the greatest abolitionist tract ever written in the West. But while rejecting all gratuitous pain and suffering, Beccaria held that we ought to consciously inflict painful bodily punishments upon criminals who have intentionally and gratuitously hurt their victims. "When robbery is attended with violence ... corporal punishment should be added to slavery." (14) Thus Beccaria, too, embraced non-lethal but physically painful punishment calibrated to produce the best effects.

   Retributivists reject utilitarianism. We make covenants with the past, feeling obliged to respond on behalf of the dead victim. Retribution persists as punishment's essential measure, justification, and limit. Naturally grateful, we reward those who bring us pleasure. Instinctively resentful, we punish those who cause us pain. Retributively, society intentionally inflicts pain and suffering on criminals because they deserve it, but only to the extent they deserve it.

   The basic retributive measure of pain--like for like--"as he hath done, so shall it be done to him," (15) "giving a person a taste of her own medicine; fighting fire with fire" (16) primally satisfies. Beccaria, as well, called for like-kind punishment as a response to crime. (17) Having the punishment resemble the crime better deters would-be criminals by creating this association of ideas. Retributivists, however, would connect the criminal's attitude while committing a crime along with the suffering victim's experience to that criminal's later painful experience of punishment. In short, for the sake of justice, we would connect crime to punishment.

   Critics commonly equate retribution with revenge--disparaging "an eye for an eye" as barbaric. But retribution is not simply revenge. When a regime decimates a family or community for the despicable acts of a single member, they exact revenge, but hardly respond with retributive justice. Revenge may be limitless, much more than deserved, even misdirected at the undeserving. Retribution, a painful measure, however, must be limited and in its more mature measurement, proportional--no more (or less) than deserved. The Biblical "eye for an eye," originally understood as no more than an eye for an eye, exemplifies retribution as a restriction on pain as much as justification of punishment.

   Thus, we reject even a painless execution for simple robbery, no matter how effectively it might deter other would-be...