NPR sat down with Justice Scalia for an interview recently.
I won’t pretend to have any knowledge of judicial philosophy, but this caught my attention:
Conversely, because the death penalty existed at the time the Constitution was written, it cannot be that the Eighth Amendment ban on cruel and unusual punishment allows a constitutional ban on capital punishment. The question, he says, is whether current methods of execution are more cruel than hanging, which was the method of execution in 1789. He thinks the court thus has been wrong to bar the death penalty for the mentally disabled and the young.
For him, the only question is this: “Is the electric chair more cruel than hanging? Of course not. It was adopted precisely to be less cruel. Is lethal injection less cruel than hanging? Of course.”
I’ve gotta think this sort of discussion reveals more about the cultural sensibilities of those watching an execution than any actual, reasoned consideration of what’s cruel and unusual to the person being executed. Despite the conventional wisdom that over time we’ve been executing people in less painful ways, we don’t have any way of knowing what the experience of being executed is like because we’ve, you know, executed the person. The Rev. Joe Ingle argues, concerning lethal injection, that it would be impossible to tell if someone were suffering as they died, because one of the ingredients in the death-cocktail is a tranquilizer, and tranquilized people are incapable of expressing anything.
What’s really happened is that we’ve become more uncomfortable with the spectacle. We don’t wish to see someone squirm from a rope or convulse in an electric chair. Those things looked too much like violent killing. So now we do state killings with medicine rather than implements of killing. It’s supposed to make us feel like we’re “putting them out of their misery,” or something. As if they’re animals wounded beyond repair instead of people.
The electric chair didn’t replace public hangings because we deemed it less cruel. We did it to make ourselves feel more civilized, and once the electric chair seemed too barbaric we moved on to lethal injection. Maybe, just maybe we’ll finally take the next step and realize that intentional killing is cruel and unusual, whether by rope or chemical. For now, we can squabble about the most humane way to act inhuman.