It seems that we have been here before. On January 7th, 2008 the United States Surpreme Court heard arguments on whether execution by three-drug lethal injection constitutes cruel and unusual punishment. Once again the American legal system will line up on both sides of this issue and once again we will show the world the darker side of our national nature.
What is it about America that we appear so eager to find ways to express the worst in ourselves? Isn't reality TV enough? Why are state legislatures (mostly in the South) staying up nights to fashion new crimes for which death is the punishment? Even states that haven't executed anyone since the fifties are slow to wipe their capital punishment laws from the books.
As a society, we appear finally to be backing away from executing our criminals. Illinios has vacated all capital cases and New Jersey has abolished the policy all together. New Mexico, Maryland, Montana and Nebraska appear ready to follow suit. Florida, which proudly executed Ted Bundy in 1989, has 55 men who have been on death row for 25 years or more. The message is clear: lawmakers and officers of the court understand that executions are not only expensive, they are irreversible.
Nevertheless, Judge Antonin Scalia can't wait to get those three-drug cocktails flowing again. Executions in America have effectively been suspended pending the Supremes ruling as to whether the current system is cruel and unusual. The ever compassionate Judge Scalia, champion of the unborn, wonders aloud what clause in the Constitution guarantees a merciful death for murderers. The Bush judges, Roberts and Alito, seem inclined to agree. (Big surprise.)Even Beyer and Souter are reluctant to rule on this case (brought by two inmates in Kentucky).
It's easy to cheer when the likes of John Wayne Gacy and Timothy McVeigh are led to the gallows but the difficulty with capital punishment is that we apply the laws so badly. Since the 1976 reintroduction of the death penalty, 126 condemned men have had their convictions vacated. Of the 1,000+ inmates who walked the last mile, at least ten died in spite of grave doubts about their guilt. Do we really think that 1% is an acceptable margin of error?
If you were reading The Washington Post today, you could hardly miss the page 2 story concerning the pending Supreme Court ruling. What you may have overlooked was a page 5, three-inch item regarding one Ken Richey. Mr. Richey was released from Ohio's death row after pleading no-contest to charges relating to a 1986 fire in which a child was killed. An Ohio appeals court overturned Richey's conviction. The specifics are dull (except to Mr. Richey) having to do with competency of council and intent but, the underlying issue is that capital cases are unnecessary and often tragic. At one point Ken Richey was less than one hour from his date with the headsmen. Mr. Richey holds a British passport and is heading out of Dodge as quickly as possible. If you can catch him at JFK, ask him if he thinks the death penalty in the U.S. is cruel and unusual.
And so, as we watch with gleeful anticipation as Virginia executes John Allen Muhammad (the Washington sniper of 2002) and Texas continues its struggle to execute teenagers and the mentally handicapped we may wish to stop and reflect. What purpose do we serve by killing our own citizens? Justice? Vengeance? Who cares? Justice Scalia may not find mercy in the Constitution but he won't find vengeance in the New Testament either. How about a little strict constructionism, your honor!
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