Yesterday, the Boston Globe had yet another editorial arguing against the death penalty. Their conceit this time is that it is always cruel and unusual, but the current method in vogue — lethal injection — is especially so.
This might come as a great surprise to many people, but I find myself disagreeing with the Boston Globe. (Shocking, isn’t it?)
I have a rather heretical attitude towards the United States Constitution. I believe that it was written for everyone, and written in clear language that everyone should be able to understand. (The 2nd Amendment and its annoyingly vague language being the exception.) And to me, the Constitution is very clear about the death penalty: it allows it.
The Fifth Amendment explicitly authorizes the use of the death penalty:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
To me, it’s simple. The Amendment says no one shall be executed unless certain proprieties are observed. If they are indicted by a grand jury, have not been tried for the crime before, and given due process, then they can be executed.
It’s simple logic. “You can’t do B without first doing A” implies that if you do A, then you can do B. It’s like saying “you can’t go into the theatre without buying a ticket.” The inference there is that if you do buy a ticket, you can go in.
So the Globe can’t argue that capital punishment is in and of itself unconstitutional. The Fifth Amendment is annoyingly contradictory. So, they try to find a way around it — and their chosen weapon is the Eighth Amendment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
(Again, emphasis added)
Now, here is where my notion about applying common sense and standard reading comprehension comes in. The Constitution clearly forbids “cruel and unusual punishments.”
Let’s take that word by word, shall we?
“Cruel.” This online dictionary offers four definitions:
1. willfully or knowingly causing pain or distress to others.
2. enjoying the pain or distress of others: the cruel spectators of the gladiatorial contests.
3. causing or marked by great pain or distress: a cruel remark; a cruel affliction.
4. rigid; stern; strict; unrelentingly severe.
I don’t think the Founding Fathers meant the fourth definition, as it’s pretty clear that a death penalty is rigid, stern, strict, and unrelentingly severe, no matter how it’s applied. So we’ll set that one aside.
The third one has been the crux of the fight over capital punishment. Folks have been trying for centuries to find the least painful, most efficient way to execute people. Beheading by sword, hanging, guillotine, firing squad, electrocution, poison gas, and now lethal injection — the idea has been to find the most efficient, least painful way of ending a human life. And I think that the current favored method — putting the person to sleep with narcotics, then chemically stopping their heart — is likely the most humane way yet devised.
The second definition has pretty much been eliminated with the end of public executions. Yes, some people still revel in the deaths of heinous criminals, but they have do to so from a distance.
The first definition, though, is tricky. Our system is — at least in theory — set up to avoid causing pain as much as possible. The “distress” element, though, is pretty hard to avoid. The years and years the average felon spends on death row before being executed has to be tremendously distressful — but that’s simply unavoidable.
The second part of the restrictions is a bit trickier. “Unusual.” Back to the same dictionary,
not usual, common, or ordinary; uncommon in amount or degree; exceptional: an unusual sound; an unusual hobby; an unusual response.
This one is a bit tougher to parse. I’ve always taken it to mean that it should not be some spectacle, some bizarre form of punishment, even if expressed in some form of poetic justice. Feeding Jeffrey Dahmer to animals. Strapping Osama Bin Laden to an airplane and crashing it, or trapping him in a collapsing building. Knocking a stone wall over on top of gays. Blowing up Timothy McVeigh.
But here’s the tricky part. “Cruel” and “unusual” are joined by “and.” Technically, that means that a punishment could be cruel OR unusual, but not both. That means that in order to strike down a form of capital punishment, it has to fill both criteria.
There is an honest way to get rid of capital punishment — simply pass laws forbidding it. The Constitution allows the death penalty, but does not mandate it. Many states have already foregone capital punishment, and the same principle holds on the federal level. All it takes is enough legislators to change the laws.
To attempt to bypass this process and try to legislate via the courts is no new tactic to the Left. That’s how they’ve gotten gay marriage in Massachusetts, and in a horde of other areas. It’s just so much easier to persuade a few judges than a majority of the people that you know better than they do.
It’s just too bad that it does far more violence to the Constitution than lethal injection.