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Remember the cruel & unusual death

Let me, for a brief moment, put on my lawyer’s hat.

LET ME, for a brief moment, put on my lawyer's hat. The Eighth Amendment barring cruel and unusual punishment is not a suggestion. It is a mandate carved in stone. We do not torture, we do not cause undue suffering, we do not stretch the bounds of humanity in the name of vengeance.

Now let me toss that hat to the side.

The merits of the death penalty have been and will continue to be debated as long as justice is viewed through a personal prism. I believe that a society must impose the most draconian punishment for the most heinous crimes, otherwise we do violence to the humanity of the victim. Others have a legitimate, heartfelt and sober belief that the government has no right to essentially "murder" one of its citizens.

But this concern for process, which is important, shouldn't turn our focus away from the fundamental issue: Capital punishment is legal and constitutional; the cold-blooded murder of innocents is not.

News reports about the 43-minute execution of Clayton Lockett focused on him writhing in pain. This, of course, is horrible. Even a rabid animal elicits sympathy when it's in the final, foaming agony.

But few mentioned the reason Lockett was on that gurney in the first place with an IV strapped to his arm, the reason that his life was justifiably forfeit: Stephanie Neiman.

Stephanie was shot to death by Lockett, who then stood by and watched his accomplices bury her alive. I'm guessing that her agony lasted a bit longer than 43 minutes.

It is obviously true that two wrongs do not make a right, but there is really only one wrong here, and that is the vicious extermination of an innocent woman. The botched execution of her murderer is troubling from a procedural standpoint, but it should not blind us to the true tragedy in this case.

The Lockett case is a textbook study in how pro- and anti-death-penalty activists view the issue. Opponents of capital punishment, who are generally but not necessarily liberals, feel that all life (except the unborn variety) is sacred and that society has no right to destroy it even in those cases when this would balance the scales on an "eye for an eye" basis.

Those like me, who favor the death penalty for the most violent and despicable crimes, feel that we are bound by a social contract, and that when it's broken by an act that falls below the lowest human threshold of decency the appropriate response is execution. Many of us are conservatives, but there are also a good number of liberals and libertarians who have no problem with snuffing out the life of an unrepentant murderer.

Again, this is really not about the morality or legality of the death penalty. It is indeed legal, and while it can be circumscribed by squeamish state governments or limited by the Eighth Amendment, it will remain on the books for generations to come. The morality question is a little tougher, since there are billions of separate moral systems, each bearing the imprint of our separate DNA, but what some see as judicially approved murder others (like me) see as justifiable homicide. Or better, justice.

What angered me the most in the discussion about the horrific nature of Lockett's execution was the blithe and utter refusal on the part of so many to acknowledge that his suffering was infinitely shorter and, let's be honest, more deserved, than that of his tragic victim. Forty minutes of pain, of an inability to breathe, of the sense of suffocation as the curtains to your earthly days close upon you is nothing compared to the fear in Stephanie Neiman's heart as she was shot and then pushed, alive, into a ditch. Imagine her pain when the dirt fell upon her head, clump by clump, and the light was forever shut out. Put yourself in her poor, battered body, stripped of dignity, of comfort, of the concerns of press types and governors and presidential press secretaries. Think of her final moments, and then consider whether half an hour of convulsions is as horrible.

That last paragraph might strike you as sadistic, and perhaps it is. But if the ability to empathize with an innocent, dying woman over the justified final reckoning of a murderer makes me a sadist, I will wear that label with no small pride.

The lawyer in me understands that we are not a nation of vigilantes, and that we must ensure that the people who are executed on our watch are guilty beyond any reasonable doubt. I'm in favor of whatever measures are necessary to make that happen. What I'm not prepared to do is weep crocodile tears for a man who was the victim of a botched execution, when the only reason he was so mightily inconvenienced was because he took an innocent life.