Such is the state of modern society that the U.S. Supreme Court gets the job of deciding how much pain the victim of capital punishment feels -- never mind what kind of pain the victim's victims may have felt.
Kind of interesting -- and very modern: part and parcel of the process by which our institutions attempt to work off guilt for all manner of things done in the past and now perceived as somehow brutal and unjust.
A court decision adverse to the state of Kentucky's procedure for executing convicted murderers -- a drug "cocktail" that knocks out the victim before killing him -- wouldn't exactly end capital punishment, or even capital punishment via drugs. What it would do is send state lawmakers re-legislating to identify and approve a pain-free knockout punch.
The Kentucky cocktail is standard 21st century operating procedure -- a replacement for the electric chair, which in turn replaced the noose.
A lawyer arguing for mercy on Ralph Baze -- who executed a sheriff and deputy trying to serve a warrant on him -- insisted the way to go is a single dose of barbiturates. Justice Antonin Scalia wanted to know why pain was such a central consideration in the legal equation. "This is an execution, not surgery," Scalia said.
Well, yes. And no. That it is an execution is what matters to growing numbers of Americans working to put capital punishment itself to death. The technique is, object to everything about the death penalty -- fairness, pain, cost, international opinion, the prospect of executing the innocent. Death by a thousand cuts is the prescription for the death penalty.
Any time you have to put the matter to lawmakers -- as would be the case if the Supreme Court were to disallow the Kentucky cocktail -- is a chance for a debate on the whole premise that the state may take a murderer's life. You're debating means, say, and someone says no, let's talk about ends and about the supposed moral horror of an execution.
Only last month, liberal New Jersey became the first state in 42 years to abolish the death penalty, which it wasn't using anyway. Polls show public support for capital punishment at 62 percent -- though large, it's also shown to be the lowest in three decades. Capital punishment foes would doubtless peel off more of these adversaries once they got rolling. Considerable help would come from liberal Christians, including evangelicals of the Jim Wallis/Sojourners stamp, with their worldly concerns for "social justice."
It fascinates -- the gift of 21st century society for turning inside out its old norms without devoting undue attention to the question of whether those norms made the sense we once supposed they did.
What about capital punishment? Does it suddenly, after all these centuries, make no sense? The principle, I mean, not every application, as in the burnings-alive of the Reformation era -- none of which we're likely to imitate as a society.
It would have made sense to spare the lives of Goering and Himmler rather than visit on them personally and publicly the consequences of their war crimes? What of Hitler himself, had he survived the war? What of Stalin, could he have been caught by the representatives of a decent Russian regime? What of Saddam Hussein, who was indeed caught and hanged?
Extreme examples? I raise them for purposes of affirming the underlying purpose of capital punishment, which really isn't that of deterring bad behavior; it's that of making a declaration about a particular human act, one so wicked that not to inflict proportionate punishment would be the same as saying, there, there, you've been a bad boy, but that won't stop us from caring for you and feeding and housing you and making sure your plasma TV works right.
Baze, our Kentucky murderer, pleads for exemption from suffering. Why, all he did was kill two men in cold blood. What do we learn from avenging them? the soft-hearted inquire. We learn their human worth, for starters -- their unique place in the created order, as disdained by the man who shot them. We learn of their families' pain and suffering. Lastly, we learn of classic justice -- "to each his own" -- and the urgency of restoring it to a central place in modern affairs.
The renewed, re-quickened attack on the agonies of capital punishment may have its success stories to relate. Whether these stories will speak with equal conviction as to the agonies involved in maintaining the moral order -- we wait to see.