Two items in the news last week serve as reminders of how invested this country has become in the use and abuse of pain, so much so that our leaders are willing to use the Constitution to justify and legitimize abhorrent behavior.
The Justice Department’s Office of Professional Responsibility is finally able to investigate whether government lawyers improperly advised the president that he was not bound by laws and treaties on the treatment of prisoners of war. At issue is John Yoo’s now invalidated March 2003 memo to the Defense Department General Counsel about military interrogation of Taliban and al-Qaeda prisoners overseas. It concludes that the 5th and 8th Amendments do not apply and neither do the Geneva Conventions or war crime statutes. The memo also notes that harsh techniques could be used as long as interrogators did not intend to torture their prisoners. The memo also stresses the President’s Article 2 powers as a shield against prosecution. Other memos and opinions have cataloged acceptable interrogation techniques, and one such document infamously describes torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Short of this threshold, interrogators have plenty of leeway.
Also last week the Supreme Court ruled that lethal injection as it is practiced in at least 30 states does not violate the Constitution’s 8th Amendment ban on cruel and unusual punishment. In order to arrive at the voluminous 97-page decision, which includes seven opinions, the justices focused on such issues as whether there is an “objectively intolerable risk” of pain, whether the pain, if it occurs, was deliberately inflicted, and whether cruel and unusual punishment includes the pain and terror of suffocation caused by an improper administration of anesthesia, or is limited to the live disembowelments, quarterings, beheadings and burning alive with which the founders were familiar. Justice Thomas’ opinion is particularly instructive on prior methods of execution.
Most justices concurred that the plaintiffs had not proved that the three-drug regimen administered in 30 states met the definition of cruel and unusual. After all, how can there be an “objectively intolerable risk of harm” when thirty states use the procedure. They also noted that plaintiffs had not proved that the single drug administration of barbiturates used now in veterinary practice would be more humane. The ruling notes that veterinary practice is not “an appropriate guide for humane practices for humans.” Some vets might dispute that contention, as they find the preferred method of executing humans too cruel to use on the animals in their charge. Justice Stevens renounces the death penalty as an acceptable method of punishment in his opinion, an apparent sacrilege for which he was roundly criticized by Justice Scalia, who sees the sole Constitutional mention of capital crimes – “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” as ample illustration of the acceptability of the death penalty. Yet Stevens too does not find that the plaintiffs have proved their case as to the cruel and unusual nature of execution by lethal injection.
Only Justices Ginsburg and Souter noted that the execution process lacked the safeguards necessary to minimize the risk of torturous pain, especially adequate checks to ensure that the condemned is actually unconscious prior to administration of the paralytic and the heart stopper. The Ginsburg opinion notes that a visual inspection by the prison warden for the appearance of unconsciousness is not enough, and that other states have instituted more elaborate checks out of concerns about the level of unconsciousness. As to the arbitrary nature of the imposition of the death penalty and the possibility of mistakes, this was mentioned by some of the justices, but either dismissed as improbable by the plurality or not considered germane to the proceedings.
As states now resume their schedules of executions a little perspective is in order. Whether the topic is use of torture in prisoner interrogations or the infliction of pain during state-sanctioned executions, our government has investigated pain and found ways to excuse it. I realize there is voluminous legal scholarship on the meaning and interpretation of constitutional clauses. Nonetheless, the term “capital” is mentioned once in the Constitution (5th amendment, in a statement that begins with a negative). The President’s “commander in chief” status is spelled out in the following sentence fragment in Article 2 Section 2: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”. Just for the sake of comparison, impeachment is stressed on at least three occasions as the proper method of removal from office – perhaps indicating an important yet all too often ignored tool of government functioning.
