Comment Of The Day: “SCOTUS: There is No Right To Be Executed Painlessly”

The Ruth Snyder execution…

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).

19. Treason.

20. Espionage.

Well?

I’m back.

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)

Cop killers

Premeditated child murderers, including deaths of kidnapped children, intentional or not.

Murder by especially depraved means, such as torture.

27 thoughts on “Comment Of The Day: “SCOTUS: There is No Right To Be Executed Painlessly”

  1. Thanks, Jack, and I’m glad to see we agree on a lot of the categories that SHOULD send the perpetrator to hell.

  2. Steve, this was an excellent comment, well deserving of the COTD. My only real comment on the death penalty is that we need to stop thinking off it as vengeance or as a deterrent. It is, pure and simple, society ridding it self of miscreants who are demonstrably a danger to the fabric of society and individuals within that society. Once we drop the delusions and start seeing the death penalty for what it is, defining where it should be applied will become much easier.

    • The problem is that we live in a society can fairly easily rid ourselves of these people without killing them. Because Life imprisonment is fairly reliable, death is not a necessary punishment.

      Your solution does not elimate penal colonies, exile, or an Escape from New York style prison environment.

      If the goal is to rid society of such people, there are other ways.

      • I think it’s to rid them from society permanently. Without the ongoing non-‘cruel and unusual’ punishment of requiring the victim’s loved ones to know they are paying taxes to feed, house, and provide health care while the victim is gone. I suppose we could exile them to remove them permanently from the dole, but what country would want to house and make sure they don’t get out and cause other deaths. (I leave it to a thought exercise to consider a European court paroling after a harsh ten years a Dalmer who resumes his acting out there)

        Death ensures their crimes are over.

      • Inmates serving sentences of imprisonment for the rest of their natural lives aren’t entirely eliminated from society. They still have many options that allow them to reach out to further torment those they blame for their fate. I’m reminded of an inmate that I had to deal with in the Arizona Department of Corrections, a child molester with over 300 years of consecutive sentences to serve. His hobbies included filing numerous frivolous suits against his victims and their families. The actions were motivated by pure malice, ensuring that his victims couldn’t move on with their lives. If it were legal for me to put that monster down, I’d have done it in a heartbeat, and I’d have slept well that night.

        • I’m reminded of playboy Paolo Liuzzo, who killed a fellow student in a fight at my alma mater, who served not a day in jail, then continued to keep his name in the news by wrecking sports cars and briefly dating Princess Beatrice. Whenever he would hit the news the agency would approach the family of his victim, one Jonathan Duchatelier, and ask for their take on things. The family finally told the agencies to leave them alone when contacted about his time with Beatrice, saying, in essence, that they would have liked to have seen Jonathan happy with a girlfriend, but this jerk took away that chance, and they didn’t want to discuss it any farther.

    • My only real comment on the death penalty is that we need to stop thinking off it as vengeance or as a deterrent. It is, pure and simple, society ridding it self of miscreants who are demonstrably a danger to the fabric of society and individuals within that society.

      I think there’s room to call it a deterrent. I think if it stands as a symbol of society washing its hands of someone who it considers to have totally violated the social contract, it could communicate to the populace that there are crimes that are too heinous for a public legal system to forgive without damaging the social fabric. That seething people do when an obvious criminal gets away without punishment isn’t all vengefulness. When a recidivist child murderer goes into a safe, warm room to eat and drink with unworked-for healthcare at our expense, that seething might be a manifestation of a similar righteous indignation. Mercy isn’t mercy if justice is left unfulfilled, it’s just malfeasance.

      • I agree. However, there are those who say that if society responds to the loss of life by taking life, it tears the social fabric more than the initial crime. The Hon. John J. Gibbons, former chief judge of the 3rd Circuit and one of my law professors, thought of as one of the most brilliant legal scholars ever to come out of NJ, was also a passionate opponent of the death penalty, so much so that when he was in private practice he filed friend-of-the-court briefs in every death penalty case in NJ, and for him it all boiled down to “[i]t is horrible that in a civilized country the arbitrary imposition of revenge continues to exist. This does not exist in any other industrialized democracy in the world. We are completely out of step. We should be ashamed.” On the other hand, as a lawyer (although officially a Republican, which is how he got Richard Nixon to put him on the Court) he also argued for the rights of Guantanamo detainees and a bunch of other liberal causes, and as a judge he oversaw the release of a murderer who later murdered again, then scoffed, saying “Federal judges have life tenure, “Nobody could do anything or impeach me.” He also said in class that it was perfectly OK for judges to “legislate from the bench” as long as they give reasons for doing so.

        For me, this kind of behavior encapsulates the anti-death penalty mindset – passion, certitude, anger at anyone disagreeing, arrogance, and hubris. I of course held Judge Gibbons in near-godlike reverence while he held the grade book and everyone talked him up as the greatest scholar on the faculty, but now, as a lawyer 20-some-odd years in, who’s seen judges get it right and get it wrong, and who believes in government by enumerated powers, not by whatever a judge who thinks he knows best decides, I just see him as one more arrogant liberal, trying to ram his views through, because dammit, he cared.

        • You’ve reminded me of the cynical thought that occurred to me when I saw this narrow court decision: of course the Democrat judges voted all, in unison, against the death penalty in this particular, nuanced question of Constitutionality. Of course, I haven’t had the spare time to read the decisions yet. I may be surprised; maybe they aren’t all employing the ramrod.

          The assertions of moral superiority, is certainly something I’ve seen a great deal of. A Professor Edward Feser published a book defending the death penalty from the standpoint of Catholic moral philosophy, and the counter-cases of his opponents tend to have a foundation of unsubstantiated certainty in common.

  3. I can probably name at least 20 circumstances that would be appropriate:

    \
    Let me add racial profiling.

    https://ethicsalarms.com/2018/12/29/morning-ethics-warm-up-12-29-18-infuriating-stuff-i-wish-i-didnt-have-to-know-about-or-write-about-edition/

    4. KABOOM! I don’t understand this story at ALL. An African-American man, a registered guest at a DoubleTree hotel in Portland, Oregon, was told to leave by hotel officials while he was sitting in the lobby making a phone call, reports the CBS affiliate there, KOIN-TV. Jermaine Massey was talking to his mother, who called him. The episode was captured on his cell phone; the hotel has apologized; the staff responsible has been placed on leave. Massey’s lawyer is calling his “offense” talking to his mother on a cell phone while black. Massey was not intoxicated, or shouting. This isn’t a case like the Starbuck’s mess in Philadelphia, where the staff involved was at least following store policy. If Massey was registered and had a key card, how could this happen? How could there be anyone not institutionalized whose ethics alarms wouldn’t be deafening at even the thought of forcibly ejecting a black man from a hotel under these circumstances?

    This definitely should be a capital offense.

  4. I would also argue repeat child rapists (Louisiana v. Kennedy was wrongly decided) and rapists who transmit HIV/AIDS also warrant the death penalty (a rapist who gives their victim AIDS/HIV has passed a death sentence on them) warrant the death penalty.

    • HIV/AIDS is no longer automatically, or even usually deadly. Treatment is now so advanced that comparatively few people with the virus actually perish from it or from complications associated with HIV/AIDS, at least in the United States.

      I think that has to matter. Would we execute someone for deliberately passing on viral hepatitis, which currently has a higher mortality rate than HIV/AIDS?

  5. Two old capital punishment cases from law school that I have never forgotten, both involving California law. They say nothing about the morality of capital punishment per se, but they deserve to be remembered as history from the days when courts believed in strictly construing statutes precisely as written in the most literal possible way.

    1. “Kidnapping from which the victim is not liberated unharmed” carried the death penalty. Kidnapping was defined as “taking a person against his or her will from one place to a place of greater concealment if done for the purpose of committing a felony.” Man dragged woman from the sidewalk behind a hedge, robbed her and punched her several times, causing severe bruising, swelling and pain. Result: death penalty. She was kidnapped, since behind the hedge was a place of greater concealment than in front of it; the purpose was to rob her, which was a felony (the prosecution had argued that he also meant to rape her and was interrupted, but the court held that this had not been proven); and the victim was not released unharmed, since her face and arm were badly bruised and swollen. The court noted in dictum that pain alone without physical injury would not have constituted “harm” within the meaning of the statute but that an accomplished rape would have constituted “harm.”

    2. “Murder by torture” also carried the death penalty. Man lured woman into his house, tortured her for days, then cut her throat. Result: no death penalty. She was not kidnapped, since she came to his house willingly, and although she was moved against her will from room to room in the house, there was no proof that any of these rooms provided greater concealment than any other. And she was not killed by torture; rather she was killed by throat-cutting, albeit the killing was preceded by torture.

    I went looking for cases where the court had actually held that a killing did constitute murder by torture. The only ones I found were where the murderer had burned the victim alive, since the instrumentality of torture and of death (burning) were identical.

  6. “The Cheshire, Conn. murders”

    This is the crime that broke my opinion of the death penalty. I was initially ultra-liberal on this issue, thinking that the death penalty was just not acceptable today, but moderated considerably.
    My initial view was a rather unexamined belief, essentially unchanged from what I had expressed in a middle school essay a few years before the home invasion. In that middle school essay, I decried the state of Connecticut for “murdering” Michael Ross, a jolly good chap who killed 8 souls before the age of 24. (Stipulated, even in middle school, I conceded wooden jails of the Wild West, etc, could not reliably contain dangerous individuals, necessitating the death penalty.)

    My main argument was that killing was WRONG. This was axiomatic, not allowing counter argument. The only mitigating factor for execution, the need to protect the public, was adequately addressed with modern maximum-security prisons.

    Ross was the last criminal successfully executed by Connecticut, making the opportunities to reflect on an actual case study vanishingly rare. However, Connecticut had several placed on its death rolls, each hopelessly tied up in appeals (mostly by design). A distressing number of capital indictments came from prosecutors in Waterbury, the major city in northwestern part of the state. Waterbury has a unique reputation for corruption second to none (in a state with Hartford, New Haven, and Bridgeport, mind you); disgraced ex-governor Rowland was employed by the city when he was released from prison.

    Basically, if you committed murder in Waterbury, you got put in a long queue for a theoretical execution. Commit the same crime elsewhere, you got life in prison. In my mind (and the mind of many in state), the death penalty was hopelessly broken. The state dealt with the Waterbury problem by creating endless opportunities for appeal (a very Connecticut approach…).

    Thus the death penalty was both WRONG and wasteful!

    In 2004, Ross attempted to disrupt the system, by waiving his right to appeal. He said any hope of commuting his sentence through appeal was only going to cause his victims more pain. How noble. Michael Ross also spoke of finding peace and repentance, and had even joined a Catholic religious order, participating from his cell. As devout Catholic myself then (and now), I wanted him to experience some more temporal punishment in this life, rather than the state on my behalf expediting his trip to purgatory.

    His lawyers also got severely reprimanded for advocating against further appeals, and had to launch some pro forma appeals against their client’s wishes just to save face.

    Thus executing Ross was WRONG, GROSSLY wasteful, and perversely MERCIFUL. I was not impressed.

    Having been successfully goaded into executing Ross in 2005, the state began to take the death-penalty/Waterbury problem seriously, and successfully repealed the death penalty in 2009. This was fast by Connecticut standards, but would have come even sooner were it not for a little problem in 2007….

    On July 23, 2007, Steven Hayes and Joshua Komisarjevsky broke into the Petit home, tied everyone up, kidnapped the mother and promised to free her family if they took her to an ATM and emptied her checking account, and then killed everyone anyways. Then they set fire to the house for good measure.
    The two were caught minutes later down the street.
    Komisarjevsky attorney had to zealously represent his client; he had to clarify to the media that his client did NOT rape the older child, ONLY masturbated onto her (before murdering her).
    I don’t even know if I felt anything then because it was just such a mind numbing waste of 5 lives (3 innocent dead, 2 goddamn knuckleheaded murderers), but the details are still vivid, and I get angry just thinking about it. (The one survivor has also became how I define the term.)

    The case also did not fundamentally change my view on the death penalty. It just broke the first axiom… slightly. The penalty is still WRONG with maximum-security prisons available. However, if Connecticut not abolished the death penalty as contemplated, one could not plausibly argue against trying this case as a capital offense.

    The Cheshire home invasion was jarring enough that it got me to separate the purely moral WRONG-ness of the death penalty from the legal and purportedly just applications of it.

    Ultimately Connecticut settled on a boneheaded plan to proscriptively abolish the death penalty for crimes committed AFTER 2009. This was meant to allow Steve and Joshua to meet there plausibly just demise with the residual death penalty available to crimes committed BEFORE the abolition law came into effect. The Connecticut Supreme Court ruled against this scheme, but in a supreme act of confidence, declared the state too-broken to constitutionally implement the death penalty at all.

    From a moral standpoint, I am quite pleased that no new persons will be added to the in-death-inite row. However, from an ethical standpoint, I dislike the court’s ruling immensely. The death penalty should be voluntarily abolished by the people after weighing it merits and flaws, not moral platitudes imposed under the color of law.

    • Terrific post, and a COTD. One correction: the father was beaten and left for dead, but he survived. That vicious crime would be my immediate rebuttal of any absolute anti death penalty argument. Emotionally, I wouldn’t oppose a public execution for the two killers.

  7. How do we define “beyond all doubt” distinctly from “beyond a reasonable doubt” such that plainly unreasonable or irrational doubts aren’t raised?

    • I’d call Jack Ruby’s assassination of Oswald a “beyond all doubt” example: it was on videotape and seen live on National TV. Sirhan Sirhan was tackled immediately after shooting RFK. John Wilkes Booth shot Lincoln in a theater full of people and jumped down to the stage. O.J.? Well, doubt seemed unreasonable to me, but still: the lead investigator was exposed as a liar and a racist, and the gloves didn’t fit, plus nobody thought of Juice as someone capable of such a slaughter. That’s enough for reasonable doubt for some. Now, if there had been a video, it wouldn’t have mattered.

      • Even with video, I’m not sure people wouldn’t find reason to doubt. The angle and lighting might be off, so maybe it’s not the defendant, or maybe the defendant isn’t doing what he’s accused of, and today especially it’s relatively easy to manipulate video. I guess I’m skeptical we can do better than beyond a reasonable doubt, but in principle I agree with what you’re saying.

  8. I find it fascinating that so many consider keeping a chook in a cage all its life is cruel and inhuman, but are happy to keep a human in a cage all their much longer life. I’m, sort of, with them on that. I consider the death penalty to be more humane than life imprisonment.

  9. Texas Rangers have surveyed prisoners, and have found that the existence of the death penalty is of great deterrence here in Texas.

    All the arrogant liberals are welcome to live in blue places by their rules; leave us to our own, please.

    But that is the problem, isn’t it?

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