On Friday, the Supreme Court of Arkansas struck down the state’s law governing the execution of inmates held by the Arkansas Department of Correction. The Method of Execution Act of 2009 was found to violate the state Constitution.
Without belaboring the technical points of the ruling, it is sufficient to say that the court found the state Legislature to have abdicated its duties to provide necessary guidance (as to manner and method of execution) by allowing the executive branch (in the form of the ADC) to determine how executions should be accomplished.
The central issue is one of separation of powers.
The court majority held that “The MEA fails to provide reasonable guidelines for the selection of chemicals to be used during lethal-injection and it fails to provide any general policy with regard to lethal-injection procedure.”
Over the past 40 years the American legal system has struggled with the constitutionality of executing prisoners. When garden spots like Cape Verde, Haiti, and Guinea-Bissau have banned the practice, it should give us pause to consider whether our present course is best.
There are many ways one could approach the topic of capital punishment.
The ethical dimension of the practice is the most logical place to start. After all, if we agree that something is inherently unethical, then any other qualities, attributes or results are immaterial — at least if we expect to make any claim of ethical government.
First and foremost, we must acknowledge that there are monsters among us. They don’t usually hide under the bed. They walk the streets, waiting to destroy.
It is easy to conclude that some people are so far beyond redemption that they must be forever removed from the free world. Their acts are so reflective of innate evil, psychopathy or terror that they must be made to forfeit freedom.
With that as the starting point, we must then assail a much more complex question: What do we do with the monsters once we’ve identified them?
For most of human history a lex talonis (eye for an eye) paradigm dictated a single penalty: Death. The urge to smite those who have ruined families, destroyed lives or acted inhumanely is powerful and compelling, but is it sufficient to become the thing we hate?
Of course, something as ethically nuanced as capital punishment is fraught with situational sticking points. The penalty must adapt to the crime.
So too must public sentiment. The conventional alternative to the death penalty has been life imprisonment without the possibility for parole. Here we accomplish one part of the necessary end — we remove the monster from us permanently — but to the victims and their families, this often feels empty … justice somehow incomplete.
We regularly hear sentiments like “prison is too good for them … they get fed and clothed and kept … all at our expense.”
One way or the other, the taxpayer will pay dearly. Executions are not cheap. Neither is confinement.
For the worst of the worst, American corrections has developed a method of confinement popularly known as “super max.” Under super max confinement, prisoners are typically held in solitary confinement. They may not have contact with anyone else. Meals are separate. Exercise is separate. Cells are bare. “Spartan” fails to capture the austerity.
Many inmates held in super max for extended periods of time become more unmanageable and violent. Insane. In their seclusion, their thoughts turn in on themselves until a self-reinforcing madness blossoms.
The terror of being trapped alone both physically and mentally — for years on end — is a kind of unimaginable punishment. It is a punishment arguably greater than the quick release of death.
Here too, though, we come to an ethical crossroads. Is it better to just kill the monster or keep him in such a way that he becomes a bigger crazier monster?
Society has a right to be protected. Victims have a right to justice. Order must be preserved. The power of the law must be reasserted. Penalties must attach. Even so, the path to a balanced end is uncertain.
Matthew Pate is a former law enforcement executive who holds a doctorate in criminal justice from the University of Albany and who has advised police agencies around the country. He writes from Pine Bluff, Ark. Contact him at firstname.lastname@example.org