A Matter of Life and Death

Cal Thomas

4/22/2008 12:01:00 AM - Cal Thomas

The Supreme Court has ruled 7-2 that the death penalty by lethal injection in Kentucky, which uses a cocktail of three drugs, is not a violation of the Constitution's prohibition against "cruel and unusual punishment." Other states, which had placed their lethal injection methods on hold pending a court ruling, are now expected to proceed. No news report I saw appreciated the irony of the 7-2 vote, the same margin by which the court decided in 1973 that unborn babies could be killed in any manner, with or without drugs to dull their pain.

As death penalty opponents on and off the court lament the execution of convicted murderers who are getting their just desserts, some definitions might be helpful. The two phrases associated with this procedure are "death penalty" and "capital punishment." The word penalty is defined by Dictionary.com as "a punishment imposed or incurred for a violation of law or rule." Another definition includes the word "consequence." Punishment is defined as "a penalty inflicted for an offense."

It is this last one that gets to the heart of the conflict in a culture that takes as its foundational principle, "It can't be wrong if it feels so right." Fewer of us recall a time when a standard for distinguishing right from wrong and evil from good enjoyed wide acceptance. Now bad behavior enjoys nonstop TV coverage and evil is what the other political party does. The idea that a death penalty might be deserved seems foreign.

In self-defense, most see nothing wrong with taking a life if another person is about to take theirs. It is only if the killer succeeds that some strange notion kicks in that the killer's life suddenly inherits value and comes under constitutional protection. Conversely, the unborn child, according to the same court, only has a right to live if the woman carrying it gives it that right. Should she decide not to give birth, any method, including drug cocktails, is allowed. It mocks life when anti-death penalty people advocate for the guilty, while caring nothing for the unborn.

Justice John Paul Stevens, who voted with the majority that restored capital punishment in 1976, announced in his dissenting opinion in the Kentucky case his reliance on his "own experience" in reaching his decision to now oppose the procedure in all instances. This sums up the tension between those who believe in what the Constitution says and those who believe in their own feelings as to what it should say. This is why elections matter and this year's election matters more than any in recent years.

Here's another gem from the written opinions of the justices. Justice Samuel Alito referred to the ethics rules of the medical profession, which, he said, bar them from taking part in executions. This was one of the issues in the Kentucky case where it was argued that nonprofessionals might not administer the drugs properly and thus might inflict excruciating pain. Two things about this: first, "medical ethics" have not prevented a good number of doctors from performing abortions and a few from engaging in "assisted suicide" at the other end of life; second, I like what Chief Justice Roberts said in his majority opinion: "Some risk of pain is inherent in any method of execution - no matter how humane - if only from the prospect of error in following the required procedure. Š It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions."

As the court leans more conservative, it is beginning to take into consideration the pain inflicted by murderers on victims and the lifelong emotional pain on victims' families.

DNA is aiding in reducing the likelihood that those wrongly convicted will be executed. Death penalty opponents are correct when they note that not all capital cases enjoy even minimally competent counsel. That needs to be corrected, but the court majority is right in the Kentucky case. As states begin again to execute the guilty, perhaps the concept of "just desserts" is making a comeback, even in our feel-good culture.