No, Botched Execution Is Not Torture

by Andrew C. McCarthy

Another day, another “torture” analogy.

I agree with Eli Leher that it would be wise, after the botched execution of Clayton Lockett in Oklahoma (see Jonah’s post, here), to rethink lethal injection as a method of carrying out capital punishment. But the assertion that “these errors cross the line into torture” is nonsense. It is not possible to torture someone in error. As I pointed out earlier this week, to constitute the singular evil of torture, severe pain and suffering must not only be inflicted but inflicted intentionally and maliciously. Yes, a civilized society does not engage in torture, but what makes torture uncivilized is the sadistic intention to subject a person to extreme physical or mental anguish. Without that, there is no torture.

There are many accidents that result in excruciating pain. Sometimes, that pain is even foreseeable because the conduct that brings it about is reckless. No sensible person would claim, however, that accidents constitute torture, even though we readily condemn the people involved for negligence or worse, and hold them legally liable.

A botched execution in which death results only after the unanticipated and unintentional infliction of pain and suffering is an awful thing. It bears remembering, though, that the main objective of lethal injection is to render the death penalty as painless as possible — we are not talking here about criminal recklessness or depraved indifference to human life. Obviously, lethal injection has not worked as planned in some cases, and there is reason to fear that its continued use would result in more botched executions. That is reason enough to reconsider it. But if you’re going to invoke torture, then intent matters every bit as much as action. It trivializes the evil that is real torture to apply the term to benignly motivated error.

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