Thoughts on Capital Punishment

The blurb in The New York Times today caught my eye, and proved a point. Americans — right or left — need to clear their heads about capital punishment.

Today’s blurb (A21) reports that Richard Cooey, convicted of raping and killing two women in 1986, unsuccessfully appealed his execution to the United Sates Supreme Court. His reason: he is 5-foot-6 and weighs 267 pounds, so a lethal injection under Ohio law might cause Cooey agonizing pain, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Eighth Amendment’s prohibition, by its wording and history, permits capital punishment, if it isn’t cruel and unusual. What the Founding Fathers were prohibiting was horrific forms of capital punishment — disemboweling, for example — not the practice itself. They left it to later generations to determine what is cruel and unusual, and states have tried various versions — electrocution and lethal injections are examples. Some critics have argued — reasonably, but unsuccessfully — that capital punishment itself is cruel and unusual by modern standards. Under the federal system, states may outlaw the practice or try various forms. That is the “genius” of federalism. What is deemed permissible may be different in Illinois and Texas; what is deemed cruel and unusual may be different in Nevada and New Jersey.

Because most Americans really condone capital punishment (by secret ballot, the vote would be overwhelming, I speculate), but many people, pro and con, are troubled by the reality of the prospect, there is endless litigation about the practice. As a result, the Supreme Court has micromanaged the matrices of what is and isn’t permitted. Until the Supreme Court outlaws the practice as unconstitutional (not likely in the foreseeable future, given the composition of the court), the states should have the right to enact their laws — outlawing or permitting capital punishment and defining its means — with appeals limited to wrongful convictions. Those laws should be liberally and rigorously enforced to ensure that innocent people are not mistakenly executed. But the justice system shouldn’t be cluttered with fat killers claiming it is cruel to execute them, if their convictions are legitimate and permissible state trial and sentencing laws are followed.

Visit www.RonaldGoldfarb.com.

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