The prohibition on ‘cruel and unusual punishments’ found in the Eighth Amendment to the U.S. Constitution is lifted word for word from the 1689 English Bill of Rights. Monarchs of the Dark Ages, in order to maintain their despotic power, had been known to burn their subjects alive, disembowel them, stretch them on the rack, break them on a wheel, and impale them. In 1683 the parliamentarian Algernon Sidney was sentenced to have his entrails torn from his body, while still alive, for writing Discourses Concerning Government—one of the philosophical foundation pillars of the United States. These hideous punishments were intended to be fates worse than death. The tyrants’ opponents were willing to die for their beliefs but understandably feared torture. Thus the Parliament sought the rule prohibiting cruel and unusual punishment, as a safeguard to liberty, and for the same reason it was adopted into the United States Constitution.
Unfortunately, the prohibition has three serious shortcomings:
- It is ambiguous;
- It prevents adequate deterrence of heinous crimes;
- It prevents adequate retribution for heinous crimes.
An ambiguous constitutional safeguard is worse than useless
An ambiguous constitutional safeguard removes the power of self-government from the people and instead confers it on the unelected judicial branch. The formula ‘cruel and unusual punishment’ is a classic example of such a flawed constitutional safeguard. After all, every punishment is cruel and any new punishment is unusual. In interpreting such a clause, judges are not being asked to be legal technicians but rather moral arbiters. They are being asked to interpose their values and their beliefs as to what, to them, is or is not a morally acceptable punishment. The existing vague formula is no better or worse than a prohibition on ‘overly harsh punishment.’
Deterrence works on those who are not moved by the Golden Rule. They have no decency to appeal to, so deterrence appeals to their sense of dread. Timothy McVeigh, who murdered 168 men, women and children in the 1995 Oklahoma City bombing, would probably have been deterred by a law that visited proportionate retribution on him. At his trial he testified that he saw himself as no more morally culpable for his crime than a bomber pilot in World War II. While planning his crime, he had coldly calculated that his death was an acceptable price to pay for the deaths he would cause. However he was not a bomber pilot, defending the innocent by fighting a tyrannical regime. He was a fiend who resorted to mass murder when he could not convince others of the reason of his views. His action was the epitome of cowardice. Had he known that he faced the certainty of a prolonged round of agonizing torture for each person he murdered—including the children playing in the day care center he obliterated—his cold calculation would have reached a different conclusion.
It is righteous for a mother, in casting her vote in favor of torturing serial killers, to say:
Stay away from my baby. If you harm my child I will visit upon you a punishment far worse than what you do to my child and multiplied by the number of children you harm, so help me God! To achieve this end I willingly enter into this sacred covenant whereby I submit myself to the same fate should I ever deliberately harm another mother’s baby.
Punishment worse than death
The concern over whether a serial killer feels pain when he is executed is misplaced. This has come about because anti-death penalty activists have drawn attention to the pain felt during executions as a way to further their agenda. Governments have naively and wrongly sought to allay these concerns by attempting to make death as comfortable as possible—like receiving a general anaesthetic before an operation. This misses the whole point: it is right that heinous criminals suffer. Not only should they suffer, their suffering should exceed that which they have inflicted.
Executions should be made painful—in proportion to the suffering caused by the condemned to his victims and their families. After all, why should Hermann Goering take a sleeping pill and doze off peacefully when so many of his victims and their children and babies were burned alive? Why should Timothy McVeigh, who murdered so many people, who caused so much searing and chronic pain and endless grief, get to drift off like an old man in a nursing home?
A far better approach would be for the electric chair to deliver a series of non-fatal but excruciatingly painful shocks over a number of months (depending upon the number of people murdered) before the fatal shock is delivered. For example, a man like Pedro López, who abducted, raped, tortured, and murdered 300 children, should be sentenced to eight hours of electrocution each day for a month for every child he murdered.
This may seem extreme. After all, if you ask the mother of a 14-year-old girl who was murdered by Pedro López whether electrocuting him for eight hours a day for a month is proper retribution for her lost, innocent child, for her unborn grandchildren and unborn great-grandchildren, the poor haunted woman may tell you it is excessive. However, if you could visit the mothers of every living 14-year-old girl and tell them Pedro López has decided to abduct, rape, torture and murder their children, and ask them what pain they would be prepared to inflict on him to deter him—you will find that, by comparison, a month of electrocution is a mere slap on the wrist compared to the deterrence they would prescribe.