For most of human history, and currently in many populous countries, our species has used death, pain, and fear to punish and subjugate others. Criminals, corrupt government officials, dictators, and authoritarian countries inflict pain through torture and murder to eliminate their enemies, subjugate their populace, and extract incriminating statements from detainees. This infliction of pain can be as innocuous as short deprivations, or it can lead to tortures that culminate in death. Currently, around 112 countries use mayhem, mutilation, corporal punishment, and capital punishment, including whipping, caning, dismemberment, castration, stoning, hanging, shooting and lethal injection as punishment for blasphemy, homosexual acts, theft, drug use, apostasy, and promiscuity.
After September 11, 2001, our own country, in what was one of our darkest hours, justified and rationalized the use of torture, either inflicted at the hands of our own security forces, or by proxy, through rendition to surrogate countries. With the election of President Obama, it is hoped that such practices have been eliminated. Nonetheless, this history indicates that as a species, we have taken what was a positive natural phenomena meant to preserve our existence, and have corrupted it into a negative, sinister force of oppression through which we manipulate others.
Similar to all states, the U.S. and Utah’s Constitutions prohibit cruel and unusual punishment. The Utah Supreme Court indicated that “[A] punishment is "excessive" and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground.” The court further indicated that: “when the State causes suffering that is ‘wanton, insensate, or vindictive,’ when it inflicts punishment in a spirit of bitterness or sadism, it can no longer be called necessary. . . A punishment thus becomes unconstitutionally cruel when the suffering inflicted by the State exceeds what is necessary to serve the legitimate ‘objectives of the criminal law.’”
Therefore, just as cruel and unusual punishments are constitutionally proscribed as a sentence following criminal proceedings that allow proper procedural and substantive due process, our laws prohibit torture for any purposes. Yet even here, many states still deprive some of water, food, sleep, toileting, and inflict some level of exposure to the elements to those who are arrested, detained, or imprisoned. Furthermore, the U.S. military and the federal government still allow capital punishment in 32 states. In a society that has matured considerably from the days when public torture, executions, and hangings were part deterrent, part entertainment, and part civic duty, this is puzzling.
Certainly, if punishments should, by some metaphysical means, reflect the depravity of the crimes committed, many human beings deserve both torture and death. Despite this, our morality, as reflected in our constitutional pronouncements and case law, has sufficiently advanced so that we have foresworn torture as a punishment. Why? Because it is messy, violent, painful, gory, wanton, appeals to our basest natures, is often misused, cannot be retracted when erroneously inflicted, and corrupts the societies and individuals who impose it. So why do we still cling to capital punishment – torture’s last vestige?
Has it somehow become civilized because our ability to inflict it has progressed so that we allegedly kill without causing pain? Is it because it has been taken from the town square to the prison enclosure and hidden from view that it is now benign? It is not civilized. Despite the white-cloaked physicians who have replaced the black-hooded executioners, it is still nonetheless, violent. It strips life from the body, and according to some, rips out the soul, beyond all reformation, from the same.
Between the sentence of death and its execution, capital punishment, like torture, inflicts the pain, suffering, and mental anguish of fear upon the condemned and their loved ones. It, like torture, corrodes and debilitates the psyches and morals of those who carry it out, from the jury or judge who are fed by its corrupting power over life, to the prison officials who prepare and strap the condemned into the executioner’s table. Its finality, its irretrievability, condemns us all when we err. Finally, who really knows if the executed feel no pain? Can that be shown by applying the scientific method?
The problem is that just as pain is a subjective experience, whether or not capital punishment is “wanton, insensate, or vindictive” really has no anchor to any objective standard. It is wholly subjective. For whether or not a particular punishment is wanton, insensate, and vindictive is an evolving concept depending upon culture and often competing religious beliefs that are incapable of validation or empirical proof. Furthermore, is not the infliction of death an infliction of pain? It is pain that propels us to avoid any and all harmful stimuli, not just because of the pain that such stimuli causes, but also because of the final demise it might occasion. Moreover, under our Judeo-Christian culture, is not pain and death God’s punishment? Therefore, is not the death penalty a usurpation of God’s authority and simply another means of torture and therefore wanton, insensate, and vindictive?
In short, we cheapen the sanctity of life by being so presumptuous and so lacking in humility as to believe our system of criminal justice is perfect enough to inflict this type of ultimate pain on other human beings. No judge, no jury, nor legal system should be deemed so perfect, so infallible, so beyond the corrosive influence of wielding such power as to have the right to inflict torture as a means of punishment or interrogation, nor to impose the ultimate pain of death.
In conclusion, capital punishment and its infliction of pain and suffering serves no legitimate objectives of the criminal law and simply has no place in a modern penal system. It should be eliminated as a choice, on all the face of the earth.
Loren M. Lambert © May 5, 2014
