An Alabama convict on death row recently pleaded to me in a plaintive letter for the right "to be put to death on an operating table, so that my organs can be removed for donation to the vast number of people that are so urgently in need."
That this man who was sentenced to die imminently be electrouction would deplore that crude practice as "barbaric" comes as no suprise under the circumstances: that he also considered it to be a "waste of a human life" raises curious and engaging questions. Should a convict have the right to die when and how he wishes. If there is some redeeming social reason to use a phrase for another legal context? Must society insist on a gruesome, useless death, coming only as a final , unilateral act in the state's ritualistic ceremony of punishment?
The obvious constitutional question - whether capital punishment is invariably a "cruel and unusual punishment" that violates the Eighth Amendment - has had a long and rather consistent response from the Supreme Court. Death in the electric chair, or by hanging, gassing, or shooting, always has been permitted in the United States. While the court consistently has said that "the traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence," it also has proclaimed the puzzling rule that "the punishment of death is not cruel within the meaning of that word as used in the Constitution. ["Cruel"] implies there something inhuman and barbarous, something more than the mere extinguishment of life."
The death penalty is "cruel in the dictionary sense" but not in the constitutional sense, Justice Byron White has said: it is cruel in "the everyday sense of the word," the chief justice has stated, but it is constitutional.
Only a court full of brilliant lawyers could write pages of profound opinions drawing distinctions between burning at the stake or breaking on the wheel, which are such "unspeakable atrocities" as to shock the court's conscience and violate the Eight Amendment, and our more civilized modern modes of life-taking, which do not. Anyone who has seen or had described in gruesome detail how we gas or electrocute to death our prisoners has a hard time explaining whey the court's rationales have been more than sophistry.
Legal philosophers, teachers and policymakers have argued that, irrespective of the cruelty and unusualness of capital punishment, there are justifications for the grave practice. It is hard, for example, to ignore the hunch that the existence of the possibility of capital punishment deters some crime, despite studies and statistics offered to demonstrate that it does not. The argument over the need for using the most severe sanctions in certain despicable cases usually comes down to the irrational "what if it happened to your mother?" argument, which always has struck me as a questionable predicate for social policy planning.
Recent events may relieve legal philosophers from their quandary; the capital-punishment issue may be resolved on administrative grounds, instead of theoretical ones. Since no one knows how to run a system of capital punishment that is not arbitrary ("wantonly and freakishly imposed," in Justice Potter Stewart's words) or discriminatory (disproportionate numbers of death-row inmates are poor, young black men), the Supreme Court could end up determining the legal status of capital punishment on pragmatic more so than philosophical grounds. Capital punishment itself is acceptable, the court historically has said, but the human systems devised to implement it fairly generally seem to be unacceptable. So for now the issue comes down to modes of capital punishment and stardards for its imposition.
In a 1972 decision, Justice William Brennan attempted to add contemporary meaning to the historic words of the eight Amendment Punishment must "comport with human dignity," he wrote. "The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings." One aspect of that criterion, Brennan suggested, is whether appropriate penal purposes can be served more effectively with a significantly less drastic punishment.
By that reasonable standard, until capital punishment is abolished, my correspondent's poignant plea ought to be taken seriously. Given a society that reserves capital punishment for extreme cases, but one that cares deeply about maintaining standards of decency and civility, even with regard to its vilest members, the notion of at least voluntary death on the operating table suggests an option. More would be involved than a macabre system of euthanasia, which replaced executioners dressed in black with executioners in white. A medical environment would convert the death sanction to the least arbitrary, cruel, painful and excessive form. Voluntary dedication of a convict's body to humanity would add a social gain to an otherwise non-utilitarian procedure. This mode of capital punishment just might be the least drastic form of administering the most drastic and questionable sentence.