This article first appeared in the St. Louis Beacon, Aug. 23, 2012 - Several death row inmates filed a lawsuit recently saying that the drugs they would be given as part of a lethal injection might cause them unnecessary and even exteme pain, rendering their method of death “cruel and unusual.” The comments to the story in the Post-Dispatch were not unexpected: many wondered why this lawsuit was even seeing the light of day given that these people had been sentenced to death for truly terrible crimes. Why shouldn’t they suffer a bit (or a lot) on the way to being executed?
The way this question was posed was not especially gentle, and sometimes things got pretty ugly (as comments unfortunately usually get). People didn’t just wonder why we worried about death row inmates suffering, they wanted them to suffer, and suffer horribly, as much as their victims suffered. At bottom, this is a serious concern, and it raises questions about why we punish.
The legal response, not entirely satisfying but worth making, is that we have a constitutional duty to not be cruel and unusual to those we imprison, and sentence to death. This is why the state could not respond to the lawsuit not with “they did terrible things, they deserve to suffer,” but had to say “the methods we’ve chosen to use to execute them do not cause excessive or unnecessary pain.”
The challenge by the state to the criminal defendants in the lawsuit is for them to show a more humane way of executing them; it isn’t to say that humaneness doesn’t matter.
But this is unsatisfying, because it doesn’t get to the moral foundations of punishment. Why shouldn’t those who have done bad things suffer, and suffer terribly?
A key part of the moral response, which is almost overwhelming in its obviousness, is that those who are sentenced to death and are executed do suffer: They are going to die. It is hard to imagine a greater penalty. And even before their execution, they have suffered the pain and indignity of being condemned in the eyes of society. That should matter to them, even though it might not.
But there is a deeper element to the moral response, which is that we don’t do ourselves any favors by stooping down to the level of those who committed these horrible crimes. How do we look when we want to do things to them that are monstrous? Not so good, even if we imagine it might be gratifying to do so.
This has ramifications beyond the death penalty. How do we look if those we punish by long prison sentences live in squalid conditions, get poor or no medical attention, and are sexually abused? Again, remember that people in prison or on death row are being punished for what they have done: they are being deprived of their freedom and, at the limit, their lives. This should be punishment enough for them and for us.
German philosopher Friedrich Nietzsche said that in battling monsters, we should be careful not to become monsters ourselves. That applies here. Of course we should punish those who kill, of course. But we should not become like those we punish.
Chad Flanders teaches criminal law at Saint Louis University School of Law. For the 2012-13 academic year, he will be a visiting Fulbright lecturer at Nanjing University in China.