When the Supreme Court returns to work next Monday, the nine justices will hear argument over an issue as old as the Constitution itself: Is capital punishment cruel and unusual?
If it is, Kentucky will have to re-sentence Ralph Baze to life in prison without the possibility of parole. If it is not, he will be executed by lethal injection.
The ugly facts of the case are almost irrelevant, but for the record: On Jan. 30, 1992, Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe went to Baze's rural home with a warrant to arrest him as a fugitive. Baze was hiding in some brush. As soon as his wife diverted the officers' attention, Baze shot Bennett three times in the back. Then he turned on Deputy Briscoe and fired three rounds into his head. Trial and the death sentence followed.
It is beyond dispute that the death sentence is today "unusual" in the United States. Thirty-seven states still retain the power to execute violent criminals, but the trend toward suspension or abolition is clear. Last month Gov. Jon S. Corzine signed a bill abolishing capital punishment in New Jersey. A bill to abolish death sentences recently failed by a single vote in Maryland. Except in Texas, every execution is now "unusual."
That leaves for argument only the linking adjective "cruel." Clearly, cruelty is a matter on which reasonably minded men may disagree. Two hundred years ago, when the Founding Fathers proposed the Eighth Amendment, hanging was the preferred method of execution. The noose yielded to the electric chair, then to the gas chamber, finally to the concept of death by lethal injection. Thirty-six states now sanction a procedure by which a prisoner is first anesthetized and then subjected to fatal injection.
Opinion is divided on whether the procedure is constitutionally "cruel." Evidently some executions have been botched, and some condemned prisoners have suffered agonizing pain in their final few seconds of life. There is also testimony that when anesthesia is properly administered, execution is as physically painless as execution is ever likely to be.
The more interesting question — more interesting to me, anyhow — is this: Assuming, arguendo, that capital punishment in the 21st century has become both cruel and also unusual, may the Supreme Court declare it constitutionally abolished? To be sure, the high court "may" effectively rewrite any of the 10 original amendments by judicial fiat. It would take only five votes — e.g., the votes of Justices Stevens, Kennedy, Ginsburg, Souter and Breyer — and capital punishment would join Prohibition on the scrap heap of history.
Have evolving standards of civilized conduct evolved to the point that capital punishment in any form has become unconstitutional? Good question. But if this evolution has occurred, who should declare it? Note that we are not dealing with a mere judicial precedent, as we were when Brown vs. Board of Education overruled Plessy v. Ferguson. Here we are dealing directly with 200 years of fundamental law, handed down by the Founding Fathers.
Constant readers know where I come from. If capital punishment is to be abolished, the states must do it as New Jersey has just done it — one by one, through statutory repeal of their own laws.
The alternative is for two-thirds of the states to ratify a constitutional amendment rewriting the Eighth Amendment and effectively prohibiting death sentences in any form. There is precedent. In February 1933 Congress proposed a constitutional amendment repealing the 18th (Prohibition) Amendment. In April, Michigan and Wisconsin ratified. In May, Rhode Island and Wyoming fell in line. In June, the states of New Jersey, Delaware, Indiana, Massachusetts and New York voted to amend. By Dec. 5, when Utah and Pennsylvania agreed, the job was done. Three-fourths of the sovereign states had signed on. It had taken only 10 months.
Has the time come to abolish the death sentence in the United States? We may learn something from next week's oral argument in the Supreme Court. The question before the court technically is limited: Does lethal injection carry such an unnecessary risk of pain that it violates the Eighth Amendment? This technicality will not faze at least some of the justices. They do not easily faze.
A final word: In the Kilpatrick household, Mrs. K, a law graduate who generally votes and thinks lib'ral, firmly supports the death sentence. As a mellowing Whig, I kind of oppose it. No matter. We live on Pennsylvania Avenue in the District of Columbia. In our political Ultima Thule, our votes don't really count.
(Letters to Mr. Kilpatrick should be sent by email to kilpatjj@aol.com.)
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