Justice or Vengeance: Is the Death Penalty Cruel & Unusual?

By Kaveny, Cathleen | Commonweal, February 15, 2008 | Go to article overview

Justice or Vengeance: Is the Death Penalty Cruel & Unusual?


Kaveny, Cathleen, Commonweal


Does the three-drug cocktail used by the majority of states that impose the death penalty violate the Eighth Amendment to the Constitution, which prohibits "cruel and unusual punishment"? The Supreme Court recently heard arguments on this question in Baze v. Reese, a case in which the petitioners are Kentucky prisoners condemned to death. I had a clear picture of the legal question after reading the briefs. But I found myself pondering a larger moral question: Why should a decent society ban "cruel and unusual punishment" in the first place?

If you read only the briefs in Baze, you might get the sense that the purpose of the prohibition is narrow: to eliminate physical pain from punishment. The legal question is whether the Eighth Amendment prohibits all "unnecessary risk of pain and suffering" in the imposition of the death penalty, or simply the "substantial risk of wanton and unnecessary pain, torture, or lingering death." The prisoners claim that if the administration of the three-drug cocktail is botched, they will die in an excruciating fashion. Because this risk is unnecessary--it could, for example, be eliminated by using a single lethal overdose of barbiturates--it is also unconstitutional. The state responded by outlining the safeguards taken by Kentucky, arguing that the three-drug method does not impose a substantial risk of severe pain on the condemned prisoner.

I don't think that the purpose of the prohibition against cruel and unusual punishment can be reduced to the minimization of physical pain. History does not support such a claim. In prohibiting "cruel and unusual punishment," the American Bill of Rights (1791) echoed the English Bill of Rights (1689). In England, execution--often by hanging or another painful method--was a common punishment for many crimes well into the nineteenth century. Indeed, for some crimes, severe pain was part of the penalty. The English did not abolish drawing and quartering as a punishment for treason until 1814. Common punishments in colonial America for noncapital crimes included the stockade, the pillory, flogging, and branding. For many years, the infliction of physical pain, sometimes significant physical pain, was considered neither "cruel" nor "unusual."

So what is the purpose of a prohibition against "cruel and unusual punishment"? Here's my take: The conjunction "and" is important. If the state imposes penalties that are both cruel and unusual, it risks undermining the primary goal and rationale of those penalties: the communal exercise of retributive justice. As the image of the blindfolded woman holding a scale implies, retributive justice aims to restore balance to the community by imposing a cool, measured, and fair punishment on the transgressor. …

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