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Published: Friday, 10/10/2003

Insanity over the death penalty

BY EILEEN FOLEY

As a nation we are torn between humane and barbaric instincts when it comes to the death penalty. Lately the inconsistencies in our national psyche have been reducing the debate to the ridiculous.

Consider the latest turn of events in which the U.S. Supreme Court supported by its silence an Arkansas federal appellate court's 6-5 decision that it was fine to force anti-psychotic medicine on a convicted murderer who went nuts in prison. The meds, you see, will make him sane enough to execute.

We're nice people, don'tcha know? We don't execute crazies. Shoot, it's illegal. The U.S. Supremes said so in 1986. Cruel and unusual punishment, they called it. But a little thing like insanity shouldn't stand between a killer and a sentence, should it? Or are the Supremes that in love with states' rights?

There's an Alice-in-Wonderland quality to the appellate decision to force drugs on people, the better to do them in. It provides one more excuse for the rest of the world to poke vicious fun at us goofball Yanks.

People of good will can and do differ broadly on the death penalty. It is supposed to be society's punishment for the most despicable of murders.

Then up pop memories of all those wrongly convicted, thanks to bum police work, phony evidence, flawed lab tests, overzealous prosecution, and lousy representation. Some were sentenced to die, some were executed.

Only a naif thinks the system always works. Underscoring the downside are all those DNA-based releases and all those trumped-up convictions in Chicago that led a former Illinois governor to cancel executions.

Chicago lawyer and novelist Scott Turow says, I think correctly, that we are hung up on the wrong question when we discuss the death penalty. Pro-death penalty people don't want to see an innocent person executed. Yet there are some killers - Ted Bundy and John Wayne Gacy come to mind - whose crimes are so heinous that erasing them from the face of the earth makes uncommon good sense, which even opponents sometimes admit.

The question in which we are all stuck - Should there or should there not be a death penalty? - does not resolve the dilemma. A better question, Mr. Turow says, is: Can we devise a system that assures no innocents are convicted and executed and only a narrow range of the most heinous murderers are dispatched? Reason and experience say no.

Another ridiculous notion about homicide by the state is our insistence that the person sentenced to death be killed humanely. We aren't vicious killers. We just want those who are walked, or dragged if necessary, to a sterile death chamber to be put to sleep without a tic.

It isn't clear whether tame send-offs are for the killer's benefit or the spectators'. Though the audience has narrowed since we executed people in public, executions remain a spectator sport of sorts.

But writhing, yelling, and assorted other death throes of the condemned could lead viewers to toss their cookies, to succumb to screaming-meemies and panicky flashbacks.

Now it turns out that one of the drugs (pancuronium bromide) administered in lethal injections in most states, including Ohio, could mask intense distress on the part of the felon. He or she might feel the pain of dying but be precluded by this muscle relaxant from reacting to it.

If you see execution as vengeance, you won't give a hoot. But even killer-haters might have a hard time treating people worse than dogs. The New York Times reported recently that the American Veterinary Medical Association has condemned pancuronium's use alone or in tandem with other drugs in animal euthanasia because “the animal may perceive pain and distress after it is immobilized.”

That fact led Tennessee Death Row inmate Abu-Ali Abdur'Rahman, there since 1986, to challenge the chemical's use.

The state countered, the Times said, that the ban on pancuronium didn't apply to Mr. Abdur'Rahman because he is not a “nonlivestock animal.” The list includes “pets, exotic and domesticated animals, rabbits, chicks, ducks, and potbellied pigs.”

That's a swell tongue-in-cheek observation, but prosecutors are notoriously humorless.

As I said, the debate is getting preposterous.



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