Capital Error Cont’d

by Jonah Goldberg

My post yesterday on the botched (or “botched” if you prefer) execution in Oklahoma elicited two specific criticisms, in comments, emails and on twitter. The first is that it wasn’t “botched” because the murderer in question was ultimately executed. The second is that it was not only botched, it was cruel and unusual punishment under the Constitution. Both strike me as wrong. It was “botched” in that it didn’t go as planned. As I intimated, these things need to go professionally and humanely for the death penalty to endure. Many of these convicts no doubt deserve worse in the cosmic sense, but it’s not the place of the state to deliver worse. I am strongly for the death penalty but I have no desire to go down the path to medieval forms of execution where we are expected to take pleasure in someone’s final extravagantly choreographed agonies. Moreover, as a political matter, embracing that kind of thing will ultimately undermine the death penalty itself.  

Of course there’s considerable hypocrisy at work when death penalty opponents do everything they can to block more humane and efficient means of execution — i.e. the old drug cocktail —  and then complain that the remaining or new techniques are unconstitutional. You can make the case that the Lockett fiasco was a forced error by opponents of the death penalty. But, I should say, I respect many opponents of the death penalty (even if I recoil at some of their tactics). It is an entirely principled and honorable view that the state shouldn’t be in the business of killing anybody. I just disagree when it comes to people like Lockett.

Which brings us to the ridiculous claim that the botched execution was cruel and unusual punishment because it was “torture.” I see that Andy beat me to the punch in noting that, as a legal matter, you can’t torture someone by accident. But let me put it another way: Lockett wasn’t sentenced to a botched execution. He was sentenced to be executed. Think of it this way: Last night a Pensacola jail blew up because of a gas leak. At least two people died. We don’t know yet whether they were inmates. But, let’s assume they were. Moreover let’s assume they were being held for petty crimes. Their deaths would not amount to “cruel and unusual punishment” even though most reasonable people would agree that stealing a candy bar or urinating in public shouldn’t be crimes punishable by death. That’s because the explosion was an accident. The state may be liable for negligence. Some people may need to lose their jobs. But there was no intent to punish anyone cruelly or unreasonably. The same holds in the Lockett execution.  It is amazing how many stridently sanctimonious people can’t grasp this distinction when it comes to the death penalty. 

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