Opinion

What the Supreme Court missed about lethal injection: It's not just cruel. It's unusual.

Lethal injection treats a man not like a convict for a grave crime, but like a dog with a grave illness

In one of the last decisions of the term, the Supreme Court found on Monday that lethal injection was constitutional by a 5-4 decision. In her dissent in Glossip v. Gross, Justice Sotomayor zeroed in on the pain of the drug, calling it "the chemical equiva­lent of being burned at the stake" and citing the Constitution's prohibition against "cruel and unusual punishment."

But by focusing on the cruel, there is another angle that the dissenting justices seem to have missed: the "unusual."

There is certainly a subjective element at work that makes the word difficult to define. It was Justice Warren who wrote in 1958 that "[o]n the few occasions that the Court has had to consider the meaning of the clause, precise distinctions between cruelty and unusualness do not seem to have been drawn...whether the word 'unusual' has any 'qualitative' meaning different from 'cruel' is not clear."

While the question of whether the phrase's "and" is conjunctive — meaning a punishment cannot be banned for merely falling under one of the above charges — is not clear, it seems to me that lethal injection is an "unusual" punishment even if it was designed not to be cruel. It's just not unusual for any of the reasons anticipated by the framers of the Constitution, or by the various Supreme Court justices who have certified the usual and cruelty-free quality of the gallows, electric chairs, and gas chambers in the past.

The trouble is, lethal injection methods were invented mostly to satisfy the rising squeamishness of the public, for whom methods of execution that looked more like traditional punishments began to offend. It was meant to reconcile the public's distaste for inflicting pain on a convict with the desire to see them die for their crimes. We now know that the drugs used in recent decades fail at rates worse than the violent methods used previously. The difficulty of obtaining these drugs for lethal execution is driving some states to invent their own lethal drug cocktails.

If you want a $10 word for why lethal injection is unusual, call it "dramaturgy." Death penalty advocates and abolitionists should agree that the drama of an execution for a capital crime should not resemble a medical procedure. Lethal injection medicalizes justice.

Those who, unlike me, advocate for the right to physician assisted suicide should immediately grasp the problem. In Belgium the technique used for legal suicide is very similar to the older form of lethal injection execution in the United States, including the use of a narcotic in high amounts, and then a barbiturate. What is used as a punishment in one context is considered "compassion" and even "dignity" in another. I leave it to readers to figure out which of these looks worse when contemplated along with the other.

Lethal injection treats a man not like a convict for a grave crime, but like a dog with a grave illness. Or worse, like a victim of eugenic cleansing. By being done on a gurney, with white sheets, and the tools of medicine (even if not carried out by a doctor), it also stains the medical profession in our eyes. It takes the tools of medicine, and hands them to an executioner. It treats the convict like a medical problem, which is disrespectful of both the criminal and the gravity of his crime. If justice has a retributive element, the punishment should not treat the offender like a societal pathogen, but rather as a guilty man. It should not hide the violence of the punishment from us.

The death penalty takes a life by force. Its method should force us to take responsibility for it, to make us aware of the gravity of our justice system's pronouncements, as much as the gravity of the crimes.

And if American society is not comfortable with that, then it shouldn't concoct unusual punishments to hide behind. It should organize to abolish capital punishment once and for all.

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