Cruel and unusual punishment

The phrase was first used in the English Bill of Rights of 1689. Together with much else of our common law, it then moved across the Atlantic to become part of the Eighth Amendment to the US Constitution (1791).

Like many other legal terms, this one is open to debates, most of them specious but some quite reasonable. This opening is often used, and more often abused, by people taking exception to each of the two adjectives or even the noun.

I’ve twice appeared on BBC shows trying to ward off the arguments that, if stripped down to bare essentials, any punishment is cruel, if, alas, not yet unusual. Criminals, I was told in rather shrill tones, shouldn’t be punished. They should be treated, educated and eventually rehabilitated.

The assumption that crimes were caused by either illness or ignorance took my breath away. Where did one begin pointing out that this view tallied with no empirical evidence, no sensible concept of justice, nor even the most rudimentary understanding of human nature?

My total contribution to the two debates lasted about 30 seconds, which was how long it took the lovely hostess to cut me off once I uttered the word ‘evil’ in the first and ‘justice’ in the second. Anyway, I received £300 for my two appearances, which, at £10 a second, amounts to a decent wage.

Such extreme situations apart, the term ‘cruel and unusual punishment’ usually appears in the context of the death penalty. And in most civilised places it’s these days used to describe the death penalty as such, which makes one wish to enclose the word ‘civilised’ in quotes. Such punishment, say its opponents, negates the value of a human life.

I disagree. In fact, the opposite is true: the death penalty asserts the value of a human life by communicating in no uncertain terms that no wanton, arbitrary taking of it can be weighed against any term of imprisonment.

If I wished to go deep into the issue, I’d perhaps argue that, if Western morality is based on both Testaments, with more accent on the second, our justice relies more widely on OT tenets. Continuing in the same vein, I’d probably insist that the death penalty doesn’t defy the divine commandment to love our enemies. Then I’d test my cognitive health by trying to quote Matthew 10:28 from memory.

But all that is for another occasion. Today, let’s assume that the death penalty is legitimate and acknowledge the fact that 27 American states recognise it as such. However, any civilised advocate of it will agree that some methods of administering the death penalty may indeed be regarded as cruel and unusual.

Pouring molten pitch down the throat, flailing alive, drawing and quartering, unanaesthetised disembowelling, stoning – please stop me before my morbid imagination runs away with me. However, you’ll be happy to know that none of the 27 American states that practise the death penalty does so by such old-fashioned methods.

That, unfortunately, doesn’t mean they are always immune to justified accusations of meting out cruel and unusual punishment. Specifically, the recent events in Alabama give the death penalty a bad name.

Kenneth Eugene Smith was convicted of the 1988 murder for hire of a pastor’s wife. Her hubby-wubby, a minister in the Church of Christ (and I knew those sects were up to no good), paid Smith and his accomplice $1,000 each, which wasn’t all that much money even then. When suspicion fell on the minister, he killed himself, whereas the State of Alabama undertook to provide that service for Smith.

Considering he was only executed on 25 January, a fortnight ago, Smith spent 35 years on death row, which some people may regard as cruel and unusual punishment in itself. Some others, with perhaps better justification, may think that, if it takes 35 years of legal wrangling to execute a man, perhaps he shouldn’t be executed at all.

Finally, legal obstacles out of the way, Smith was strapped to a gurney last November, and the authorities tried to kill him by legal injection, the most widespread execution method in the US. ‘Tried’ is the operative word: it took them four hours to abandon endless unsuccessful attempts to stick two needles into Smith’s veins.

Finally, the inept executioners accepted defeat and sent Smith back to his cell. Now, in the old days, if the first attempt to hang a convict failed, he was usually reprieved, but that was before we became civilised. Drawing on our new-fangled humanism, Alabama decided to have another go. Here the words ‘cruel and unusual punishment’ again gained some validity.

Now, apart from the inexplicable difficulties of using the syringe, execution by lethal injection has another, more real, problem. Our humane pharmaceutical companies, such as Pfizer, now routinely refuse to supply chemicals to be used for that purpose. My recommendation would be to contract Bayer, a company that has plenty of experience in this field. But I understand that using German suppliers may be considered unpatriotic in Alabama — and too evocative everywhere else.

Hence the decision was made to kill Smith by a new, experimental method. The prisoner is made to inhale pure nitrogen, which cuts off the supply of oxygen to the brain and kills by what’s known as ‘nitrogen hypoxia’.

I’d be wary of experimenting on humans, even such rotten ones as Smith, if only because of the negative associations. But according to experts, that method is perfectly humane, with no cruelty anywhere in sight. That, however, isn’t how it turned out.

Smith took 22 minutes to die, and for several of those minutes he remained conscious, thrashing about and shaking convulsively in pure agony. By contrast, the NKVD method of firing a bullet into the back of the head seemed kindness personified.

Yet the executed man had only himself to blame for his suffering, explained John Hamm, the Alabama Corrections Commissioner. “It appeared that Smith was holding his breath as long as he could,” he said. I’d describe that as an involuntary reaction, but perhaps Mr Hamm should try to inhale nitrogen for a few seconds and see how he’d get on.

One, in my view valid, argument in favour of the death penalty is that it’s the only way of attenuating the shock waves that a vile crime sends through society. However, when it genuinely is cruel and unusual punishment, the death penalty does much harm.

The Alabama incident cocks the guns loaded not only by opponents of the death penalty but also by America’s enemies. Having the condemned man experience minutes of agony before dying violates the fundamental principles of morality and justice, not to mention legality.

In civilised countries, that is, of which the US is one. I do hope she’ll provide no more reasons for doubting that.