Capital punishment is one of those irresolvable topics guaranteed to roil an ethics blog; it has also been a reliably emotional issue that does not break down along partisan lines. The recent Supreme Court decision in Bucklew that rejected, narrowly, a condemned man’s argument that an execution method that would be uniquely painful in his case rendered it “cruel and unusual” in violation of the Constitution was a good bet to produce a Comment of the Day, and sure enough it did, from always provocative Steve-O-in NJ.
Here is his COTD on the post, “SCOTUS: There is No Right To Be Executed Painlessly.”I’ll be back at the end to briefly answer Steve’s question.
What stuck out to me is the penultimate paragraph in Breyer’s dissent, in which he states that as we move forward there may be no constitutional way to implement the death penalty. That, I submit, is one more reason we need to either get that sixth conservative justice on the Court or get Breyer out of there. Breyer already came within one step of saying the death penalty should be outlawed in a 2015 dissent in which only Justice Ginsburg joined (surprise surprise) and which got a pretty severe smackdown from Justice Scalia.
There is something fundamentally wrong with a way of thinking that worries so much about the pain, humiliation, or other bad consequence suffered by a murderer and thinks almost not at all about his victim. It’s that kind of thinking that keeps Peter Sutcliffe (the Yorkshire Ripper) sitting in a UK prison on the taxpayers’ dime, Fowzi Nejad (the only terrorist to survive Operation Nimrod) living in London on the public dole, and means Michael Adebowale (who participated in what I can only describe as the assassination of Drummer Lee Rigby, for no reason other than he was a soldier) will see the parole board in 45 years. It’s also that kind of thinking that enabled Charles Manson to dodge death until the ripe old age of 83 and would have kept William Spengler (the West Webster shooter, who wrote that, “I still have to get ready to see how much of the neighborhood I can burn down, and do what I like doing best, killing people,”[ before setting a fire and ambushing the responding firemen, killing two of them) alive, perhaps to be paroled a second time, since he had already been imprisoned for 18 years after killing his grandmother with a hammer, had he not saved the authorities the trouble by killing himself.
Frankly, I don’t think this thinking even represents respect for the system, misguided compassion, or the overwhelming fear that someone innocent will suffer the one punishment that can’t be undone nor compensated for. All too often abolition is couched in terms of moral absolutes based on following the group (the U.S. is one of a very few industrialized nations to retain the penalty), irrelevance that sounds relevant (too many blacks get executed) or just plain lazy thinking (all the hip, cool people are against it).
Just out of curiosity, Jack, how high should the bar be set before someone fries? I can probably name at least 20 circumstances that would be appropriate:
1. Killing a cop, corrections officer, fireman, or EMT in the discharge of their duties. (obviously)
2. Killing on contract (murder for hire).
3. Killing while committing another violent offense (robbery, rape, etc.)
4. Killing while in furtherance of the goals of a nation whose interests are adverse to ours. (Homicidal traitors are the worst)
5. Killing someone because of a protected characteristic (race, religion, gender, orientation).
6. Killing someone because of employment status (no targeting off-duty cops, members of the military, or veterans).
7. Killing through use of a means designed to cause mass casualty (even if no mass casualty results).
8. Killing more than one person in one incident.
9. Killing a witness to a crime. (No killing someone for simply being in the wrong place at the wrong time and seeing the wrong thing).
10. Killing someone for difference of political opinions (no targeting prominent liberals or conservatives simply because they are, no attacking someone and trying to kill him for wearing a MAGA hat).
11. Thrill killing (If you kill someone just to see him die, you die too).
12. Killing during the committal of a war atrocity (we must police our own).
13. Killing by torture (including torturing someone and death resulting, even if you didn’t intend to kill him).
14. Killing during an act of mutiny (we want to discourage the military and paramilitary turning on their superiors).
15. Killing an elected official. (some overlap with #10, but different enough to merit a separate designation)
16. Killing a newborn. (we want to discourage “prom moms” from killing their children and dumping them in the trash, it’s an outrage that Amy Grossberg is walking around free).
17. Killing a child. (we don’t need any more James Bulgers killed, thank you very much)
18. Killing during an incident of bullying (we want to discourage bullying or practical joking that could end in death).
Steve asks where I would draw the line on capital punishment. First, the standard for executing anyone should be guilt beyond all doubt, not merely reasonable doubt.
After that hurdle is cleared, only the following crimes should be eligible for the ultimate penalty:
Treason and espionage
Political assassination, actual or attempted ( Sarah Jane Moore; Sirhan Sirhan )
Mass murder I (Bin Laden, Hitler)
Mass murder 2 (Dylann Roof; Adam Lanza)
Serial killers (Ted Bundy; John Wayne Gacy)
Killers for hire.
Family annihilators and home invasion killers (The Cheshire, Conn. murders)
Premeditated child murderers, including deaths of kidnapped children, intentional or not.
Murder by especially depraved means, such as torture.