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Harris Sherline: Cruel and Unusual Punishment, Part II

Arguments pro and con about the death penalty have raged back and forth for generations. In short, those who oppose putting people to death for crimes they have committed generally do so on moral grounds, that the killing by the state is just as immoral as the crime of murder by an individual, while those who favor it do so based on the reasoning that some crimes simply justify execution.

So, is the death penalty the ultimate form of retribution, or an unwarranted form of punishment that should not be in the province of man?

Opponents of the death penalty have made every conceivable argument against it on a variety of grounds that have gradually chipped away at the state’s authority to execute criminals, largely on the basis that various forms of execution are “cruel and unusual punishment.”

Perhaps the most egregious form of execution has been the infamous electric chair, which is still used in Alabama, Florida, South Carolina and Virginia, where it is optional. It is also approved for use in Arkansas, Illinois and Oklahoma, if other forms of execution are found unconstitutional, and it was the only method of execution in Nebraska until the U.S. Supreme Court found it unconstitutional in 2008 as “cruel and unusual punishment” under the state’s Constitution.

Does it really matter how we put criminals to death? We seem to be the only country in the world that worries about the pain and suffering of people who have committed crimes that are serious enough to warrant the death penalty. Every society has its own method of choice. For example, the Chinese dispatch them with a single shot behind the ear, the Arabs decapitate them with a stroke of a sword, and the Iraqis and other societies hang them or stone them. Whatever the method, they are just as dead and perhaps just as quickly.

So why do we in America devote so much time and energy to the question of “cruel and unusual punishment”? There was a time when electrocution was commonly used, but it was eventually discredited as “cruel and unusual” and discontinued. Wikipedia reports that as of 2008, Alabama, Florida, Illinois, Kentucky, South Carolina and Tennessee are the only places in the world that still have the electric chair as an option for execution. The last person executed in the electric chair was in Virginia on March 18, 2010.

That the electric chair is considered “cruel and unusual punishment” raises the question: Just what does cruel and unusual mean? It has reached the point that even some relatively painless methods of execution are now considered “cruel and unusual,” such as lethal injection.

Reading the various arguments that have been advanced about the pain and potential suffering that is caused by the needle in lethal injections offers some insight into the process, which is more complex than the public generally understands. There is a substantial amount of literature and commentary available about the pros and cons of the process, how it can cause various degrees of suffering, and how much suffering, if any, may be acceptable.

It’s worth noting, I think, that voluntary euthanasia has been practiced in the Netherlands since 2000, when it was legalized by the Dutch parliament as an option for patients whose condition is terminal or chronically painful, and intravenous injection is one of the methods that is permitted.

However, notwithstanding the complexity of the issue, I wonder why it should matter if a condemned prisoner happens to suffer some discomfort for a few minutes as they are put to death. Many people are of the opinion that whatever discomfort or pain they suffer is generally relatively minor compared to that of their victims. The very idea that the courts should be continuously called upon to review the specific details of the process seems like a pointless exercise. More often than not, the public’s reaction is, “Who cares?”

— Harris Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital. Click here to read previous columns. The opinions expressed are his own.

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