Wednesday, September 27, 2023

#270 / Looking For A New Way To Kill

Alabama is looking for a new way to kill prisoners who have been sentenced to death. Apparently, the state has "botched" recent applications of its "lethal injection" methodology. Alabama needs a new way to kill the people that the state has decided should die. 

The Times' paywall permitting, you can read all about this topic by clicking this link. Clicking the link should take you to a New York Times' opinion essay authored by Bernard E. Harcourt. Harcourt is a professor of law and political theory at Columbia Law School. He began his legal career representing people on Alabama’s death row and he continues to represent people sentenced to death and life imprisonment without parole.

In terms of how to kill people, what is the latest idea from Alabama? Here it is: Death by asphyxiation, utilizing nitrogen gas. The scientific label is "nitrogen hypoxia." This method of killing was (previously) used to euthanize pets; however, as Harcourt tells it, "the American Veterinary Medical Association no longer recommends nitrogen asphyxiation for nonavian animals, citing data that indicates those animals may experience panic, pain and severe physical distress before dying."

The Eighth Amendment to the Constitution of the United States of America provides as follows: 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This provision in the Bill of Rights has been there since the beginning, for any "originalists" out there, and I doubt, very much, that the definition of "unusual" has changed in any significant way since 1789. This proposed method for killing people is, clearly, "unusual." A report from the Montgomery Advertiser makes this crystal clear: 

Because no person has ever been executed by inhaling pure nitrogen — there is seemingly no way to humanely test its use — exactly how the state will carry out a nitrogen hypoxia execution is unclear. A deputy state attorney general said the state has developed a protocol for it, but added that it has not been finalized. The state also has not released details of that protocol to the public or even, as of Tuesday, the man who could be executed with it in just days (emphasis added). 

It remains to be seen whether or not Alabama will try to follow through on this proposed new way to kill - and it is also not clear whether or not the United States Supreme Court would intervene to stop the state from doing so (which, of course, the Court ought to do, given the provisions of the Eighth Amendment just quoted). These uncertainties aside, I would like to challenge us all to think about a more "radical" question. 

Here is the question: Is killing another person - deliberately killing them - cruel? "Originalists" would say "no." Official killings were sanctioned all the time in 1789. Nothing "unusual" about that, and there is no indication that the Founding Fathers were trying to change current practices, which certainly included the death penalty. No problem, in other words, for the "originalists" out there.

Still, there is another way to interpret the Constitution, which is to read the words as they appear today, and then to follow what they say, based on how we understand them. My question, thus, is pertinent for any who would not think that "originalism" is the only way to think about the Constitution. 

Is killing another person - deliberately killing them, as a way to impose punishment - "cruel"?

I think it is. In fact, I am kind of an absolutist about that, and take the Ten Commandments rather seriously. 

Our Constitution expects us to apply "punishments" in appropriate circumstances. But not "unusual" punishments and not "cruel" punishments. 

Is it "cruel" to take someone's life away, cutting off all hope of redemption, and terminating any opportunity to correct what might have been an erroneous decision to impose a death penalty?

I am here to argue that it is. When old, tried and true methods of killing people prove to be "cruel" (and that is what has happened in Alabama), let's consider the straightforward option of deciding that we will simply never punish people by killing them - that killing people to punish them is "cruel" in every case.

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