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OpEdNews Op Eds    H2'ed 4/27/19

Capital Punishment Isn't Unconstitutional. We Should End it Anyway.

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Facing death by lethal injection in Nevada
Facing death by lethal injection in Nevada
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On April 1, The Supreme Court of the United States ruled against death row inmate Russell Bucklew's appeal of his execution method. Nixing his claim that a rare medical condition would make the execution unconstitutionally "cruel and unusual" by virtue of being excruciatingly painful the Court (in an opinion written by Associate Justice Neil Gorsuch) held that the Eighth Amendment "does not guarantee a prisoner a painless death."

SCOTUS has been the most prominent venue for opposition to the death penalty, but also the least effectual. Intermittent victories on procedural details produce false hopes that the Court will eventually find the death penalty as such an unconstitutionally cruel and unusual punishment. Then events like the retirement of Associate Justice Anthony "Swing Vote" Kennedy dash, or at least delay, those hopes.

The constitutionality of capital punishment has never really been in question. While some of the Constitution's framers disliked the practice ("I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it" wrote James Madison, one of those framers and later President of the United States), it was common practice at the time of the Constitution's ratification and has never in the round (as opposed to in particular details) been successfully challenged on constitutional grounds.

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But it's still wrong, and it still needs to go.

The claim of inherent jurisdiction over life and death -- the claim of a "legitimate" power to kill disarmed prisoners, in cold blood and with impunity (as opposed to the currently violent, in defense of self or others, subject to requirement to justify the deed) -- is the very definition of totalitarianism. You can have limited government or you can have capital punishment. You can't have both.

Over the last half-century, opponents of the death penalty in America have energetically chipped away at both its popularity and its political legitimacy.

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Exonerations of death row inmates, and execution fiascoes resulting from Mengele-like experimentation with methods, have probably pushed us past the point of no return as state governments reconsider (and in some cases declare moratoriums on) capital punishment.

In 2016, two American political parties -- first the Libertarian Party, then a few weeks later the Democratic Party -- enshrined opposition to capital punishment in their platforms.

In an era of ever-growing government power, this is one issue we seem to be moving in the opposite direction on. We should move faster.

 

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Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.


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BFalcon

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Well said as usual but ...

to deny that death penalty will ever be administered is wrong in my opinion.

Make it extremely rare, sure, by all means.

And there are two philosophical questions:

Is life in maximum security prison in the US worse than death?

For some it might be.

And do we have the 'right' to take away life?

Because if we don't, "physician assisted suicide" is also wrong.

Submitted on Saturday, Apr 27, 2019 at 2:46:10 PM

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Reply to BFalcon:   New Content

"physician assisted suicide" is done with the consent of the individual in question. It is therefore is not wrong and is as legitimate as any other self inflicted suicide.

Submitted on Saturday, Apr 27, 2019 at 3:27:27 PM

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Reply to June Genis:   New Content

As far as I know no suicide is "legitimate" otherwise putting people in hospital when "they are unable to seek help" would be illegal.

"Consent of the individual" is elusive, you would know if you saw the cases.

Most people can at one time or another say "let us end this".

And again, even if it is legitimate for me to take my life it does not necessarily follow that it is legitimate for anybody to do it for me.

Submitted on Sunday, Apr 28, 2019 at 12:25:40 PM

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Thomas Knapp

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Reply to BFalcon:   New Content

-----

And do we have the 'right' to take away life?


Because if we don't, "physician assisted suicide" is also wrong.

-----


Non sequitur.


An individual's life belongs to that individual. If he or she wants to discard it, neither than nor the voluntary assistance of others "takes away" anyone else's life.


As to whether or not life in prison is worse than death, that's not relevant to whether or not either is right or wrong.

Submitted on Saturday, Apr 27, 2019 at 8:45:05 PM

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Reply to Thomas Knapp:   New Content

If a person's life is their own why prevent any suicide?

Submitted on Sunday, Apr 28, 2019 at 12:22:12 PM

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Thomas Knapp

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Reply to BFalcon:   New Content
Exactly.

Submitted on Sunday, Apr 28, 2019 at 2:41:15 PM

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First, you deny depression as a disease.

Second, there was a good proposal which basically was to offer all the people who want to commit suicide to come forward. They would be given all the help that might change their mind but, if they don't change it after a fixed interval, they would be assisted to die. Agree?

Third, I don't believe that physicians should be doing what they are doing now, assisting suicide. I would like this to be decided by a court. Agree?

Finally, I think that in some circumstances people should die, some because they want it, some because this prevents other death.

Interestingly, I seem to believe that you agree that I could shoot an intruder in my house. Am I wrong?

Submitted on Sunday, Apr 28, 2019 at 3:40:14 PM

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Thomas Knapp

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Reply to BFalcon:   New Content

"First, you deny depression as a disease."


I'm not sure how or where you came up with that one. Are you asserting that people who are depressed cease to have free will or personal agency?


No, I don't think I belong to a court. I think I own myself, and that whether or not to continue to live is my decision to make, not someone else's, unless I am menacing that someone else's similar right to control that same decision.


"Interestingly, I seem to believe that you agree that I could shoot an intruder in my house. Am I wrong?"


I wouldn't say you are "wrong" so much as you are asking the wrong question.


Who is the intruder? A three-year-old who wandered out of his yard when a parent was distracted and didn't know better than to just walk into any house that looked interesting? A drunk who thought my house was his? An armed intruder intending to do me or my family harm? Those are three entirely different situations. My answers to those three situations would run from "of course not," to "only if the drunk got confrontational and violent," to "damn straight." And yes, of course it would be possible to tragically misinterpret any of those situations.

Submitted on Sunday, Apr 28, 2019 at 4:22:36 PM

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Reply to Thomas Knapp:   New Content

So killing is not a problem for you, death penalty is.

I am asserting that a person who wants to die because of depression can be treated two ways:

1. you are sick, we will prevent you from suicide and treat you

2. you are able to decide, go kill yourself. Need help?

You seem to adhere to the second option.

Submitted on Sunday, Apr 28, 2019 at 6:37:15 PM

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Reply to BFalcon:   New Content

Correct. I am familiar with depression. I've lived with people who suffer from it. I've even talked with two suicidal patients of depression, neither of whom ended up going through with it (I don't know whether my encouragement made the difference).


Depression does not suspend free will. I might not agree with the depressed person that suicide is warranted, but that's not my decision to make FOR them. It's their decision to make for themselves.

Submitted on Sunday, Apr 28, 2019 at 7:37:51 PM

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So we are wrong when we put suicidal patients in hospital and treat them?

Submitted on Sunday, Apr 28, 2019 at 7:51:01 PM

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Thomas Knapp

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Reply to BFalcon:   New Content

Unless they agree, yes.

Submitted on Sunday, Apr 28, 2019 at 8:12:05 PM

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Reply to BFalcon:   New Content

Care to answer to mine:

"Second, there was a good proposal which basically was to offer all the people who want to commit suicide to come forward. They would be given all the help that might change their mind but, if they don't change it after a fixed interval, they would be assisted to die. Agree?"

Submitted on Sunday, Apr 28, 2019 at 6:38:27 PM

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Thomas Knapp

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Reply to BFalcon:   New Content

No. I don't agree that an adult who has made the decision to die should be required to explain hirself to anyone, or to accept "help" of any kind.


I would prefer that those who make the decision to die have the opportunity to (and be socially encouraged to) voluntarily register a declaration to that effect in advance without risking involuntary detention by those who claim to own them, and to engage volunteers or paid assistants to help them if they so choose.


If at some point I should decide -- for any reason that's good enough for ME -- that it's time for me to die -- I would like to be able to write an affidavit of my intent (and if I feel like it, my reasons) and have a notary certify that it was me who signed it so as to not cause suspicion of e.g. homicide, without the guys in white coats coming to put a straitjacket on me. And I would prefer to go to a business specializing in both assistance and cleanup, rather than have my wife have to discover my body and be left with the job of cleaning my brains off the wall.


I don't object to someone trying to talk me out of it, if I choose to give them the face time and attention to do so, and if they don't claim to own me and to have a "right" to force me to continue living.

Submitted on Sunday, Apr 28, 2019 at 7:35:24 PM

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Reply to Thomas Knapp:   New Content

There was a proposal, do you agree with the proposal?

Submitted on Sunday, Apr 28, 2019 at 7:49:52 PM

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Thomas Knapp

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Reply to BFalcon:   New Content

I thought I was pretty clear that I disagree. If someone has made the decision to die, they don't owe you an explanation, nor do they owe it to you to submit themselves to some given time period of "help" in dissuading themselves before they're "allowed" to do what they've decided to do.

Submitted on Sunday, Apr 28, 2019 at 8:14:21 PM

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One thing has always bothered me about this. Throughout human history there have always been those few who have no other concern except the gratification their own desires, which they see as needs. They exhibit no empathy, no compassion, no concern whatever for anyone else, and will do whatever they 'have to' to gain those desired ends. They are most often identified, now, as serial offenders, ranging from the homicidal, to the sexual, to the merely 'acquisitive', or thievery. Their offenses also often overlap, and coincide. Once caught, and convicted, then imprisoned, and then released as rehabilitated, they invariably re-offend, always returning their particular pattern of behavior. Even after a second conviction, they exhibit no remorse, and prove to be incorrigible - and even beyond redemption. The question is - what to do with them? They cannot be trusted to be set loose, again, and have been known to find ways to exercise their pathology even while incarcerated.

We have studied them at length, and mostly learned that they are highly skilled liars, easily able to 'pass' a polygraph, and even brag about it.

At one time, long enough ago, they may have been among some few others willing to step forward and defend the tribe as a whole, as their arrogance lent them a degree of fearlessness that made them 'useful' to their society, which might have otherwise exiled them. But that time has long passed. We now have social systems of public, and national, defense to do that. And even there, these few sometimes find their way into that system, and find an outlet for their pathology that seems to be 'legitimate', but all too often wreaks too much destruction, when there should be control.

Again, what to do with them? Life in prison, with no possibility of parole, really isn't an answer. In prison, they seek each other out, sometimes one eliminating another, or, alternatively, coming to an agreement to divide their territories, and 'rule' as a feared force, perhaps as a gang leader, or as an 'outsider', unable to fit in with anyone else, unless another sees them as 'useful' for their own ends.

It is these highly destructive incorrigibles, for whom, I think, the ultimate penalty ought to be retained, and used. Another possibility is to render them incapable of procreation, that they would not be able to potentially pass on their particular trait, as has been known to happen.

It is a difficult problem. But the last half century has revealed either an actual increase, or just a greater awareness of the pathology, and its social destruction. No amount of analysis, counseling, policing has made any difference.

Submitted on Saturday, Apr 27, 2019 at 8:31:58 PM

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Thomas Knapp

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Reply to Gene Engene:   New Content

"Again, what to do with them?"

I agree that the usual answer -- "send them to Washington, DC and put them in charge" -- isn't a very good one.

Submitted on Saturday, Apr 27, 2019 at 8:46:40 PM

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Ay - that's been tried, eh? And even as we speak ... the results certainly are NOT persuasive ...

Submitted on Saturday, Apr 27, 2019 at 9:34:36 PM

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