(RNS) The Eighth Amendment to the Constitution prohibits punishments deemed to be cruel and unusual, a standard to which capital punishment does not rise, at least according to the U.S. Supreme Court. But with yet another botched execution, the third over the past six months, the cruelty is becoming pretty usual.

James Alan Fox is the Lipman Family professor of criminology, law and public policy at Northeastern University. For use with RNS-FOX-COLUMN transmitted July 28, 2014. Photo courtesy James Fox

James Alan Fox is the Lipman Family professor of criminology, law and public policy at Northeastern University.Photo courtesy James Fox

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It was disturbing enough that the state of Arizona last week took nearly two hours to execute convicted double-murderer Joseph Rudolph Wood, during most of which time he appeared to witnesses to be gasping for breath and grunting in pain. To me, however, equally disturbing is how many people rejoiced over the poor excuse for justice.

One online commenter remarked that “The more pain the criminal feels the better.” Another was anything but concerned about the mishap: “I really don’t care if he suffered. I hope it hurt like hell. I hope his last moments were full of pain and terror.”

A simple post by a third online contributor reflected total satisfaction with the prolonged ritual, “Sounds like success to me!” Similar unsympathetic comments were posted on other news websites.

The struggle to identify the right mixture of drugs to perform lethal injections stems directly from the oppositional consensus concerning the American way of punishing murderers.

Certain nations prohibit execution drugs to be exported to the U.S. Drug manufacturers, whose core mission is to promote health and healing. Further complicating matters, medical professionals keep as much distance as possible from the procedure out of their ethical commitment to doing no harm. As a result, correctional officials are fumbling and bumbling to find the right solution.

Notwithstanding the disgraceful outpouring of joy over Wood’s ordeal, in one respect I, too, was encouraged by the botched execution. As a longtime opponent of capital punishment, my sense of encouragement is radically different from the vengeance-minded folks who espoused their venomous views publicly.

Having witnessed a speedy and smoothly orchestrated execution by lethal injection, I am distressed when the death penalty is successfully carried out in a so-called “humane” fashion.

I am concerned about relentless efforts to make the administration of capital punishment streamlined, straightforward, and simple.  It should never be easy to kill a person, even one convicted of a heinous crime. To the contrary, the execution ritual should be excruciating for everyone involved. Each time we take a life in the name of justice, the controversy over capital punishment should be at the forefront.

The focus of the debate should not, however, be about the most efficient means of putting a condemned murderer to death, but about whether we should be retaining the barbaric and archaic practice in the first place.

By allowing executions to continue, even now when murder rates are low, the U.S. joins China, Iran, Iraq and Pakistan on the Top 5 List for executions, and earns distain from our peer nations throughout Europe and elsewhere.

Over the past decade, the arguments for capital punishment have shifted. Research has largely disputed the claim of deterrence, and various accounting analyses have demonstrated the high cost of the death penalty. As a consequence, death penalty advocacy has become less an issue of public safety and protecting society from dangerous criminals, and more about symbolism.

Not only are many Americans tolerant of death chamber mishaps, but some accept an occasional miscarriage of justice. As many as a third of those polled by Gallup favor capital punishment even while believing that an innocent person has been executed.

For them, a show of force against the criminal element is most important. For them, apparently, it doesn’t completely matter which criminals we kill (even an occasional innocent is acceptable) or how we kill them (a measure of suffering is OK, too). They just have a visceral need for executing criminals to feel that good wins over evil.

(James Alan Fox is the Lipman Professor of Criminology, Law and Public Policy at Northeastern University. He wrote this column for USA Today.)




  1. There is an argument to be made for capital punishment, but it isn’t the one typically given.

    Claims of the deterrence effect are proven to be completely fictitious by now. The death penalty is given in a fashion which is far too biased and freely to be of any beneficial effect. Capital punishment is as old as society. It never contributed to the reduction of crime in any culture. Far from it.

    It has a place as a form of societal retribution. A sign that there are some acts which go beyond the pale of acceptable society. The worst of the worst. Sadistic murder, serial/spree killing, murder for hire would probably be the only ones where capital punishment is truly appropriate.

    The reality is that the crime where the sentence is given the most is the one least appropriate, felony murder. When a death occurs in the course of committing a felony. Many times this is not even an intentional act, but from circumstances. Felony murder can include the death of accomplices by law enforcement.

    Retribution is really what the author here is discussing. But the problem is more of the fact that we are maintaining the fiction of deterrence. That the overuse and inherent biases of the death penalty as implemented serves a purpose. Retribution can be appropriate, but only when we drastically limit who is on the receiving end of it.

  2. I like how some of the arab countried handle it.

    Once found guilty, in what I assume is a fair trial, the murderer is turned over to the family members. They alone can either kick the chair out from under the murdered standing at the gallows, or slap him and let him live.

  3. Okay then. I promise that as soon as the Stupid Cowardly Murderers and Gutless Rapists Guild passes a moratorium on the Death Penalty, I will call for my state to pass a moratorium on the Death Penalty too.

    Otherwise….. HANG ‘EM HIGH, BABY !!!!!!!!!

    • You are more likely to be executed by the state than I would for the same crime. The sole difference being skin color. If you don’t mind that, continue on. :)

  4. Deacon John M. Bresnahan

    I am NOT in favor of capital punishment. But I am disgusted with how blithely those against cap punishment so often offer life imprisonment as a good alternative.
    Hogwash! According to some studies 8-10 prison guards a year are murdered in prison –usually by lifer prisoners. Everyone has forgotten Attica where many died–other prisoners and guards. Prisoners incarcerated for much lesser crimes are also killed by lifers.
    We had a local situation involving a guard murdered by a lifer who then escaped. In many other states the guard would be with his family and alive today and the murderer buried somewhere.
    But no one ever seems to want to talk about or debate this issue. Maybe that is because most prison guards are just expendable working class people who (as John Kerry said nastily) should have gone to college.

    • The death penalty prevents nothing. You are ignoring the problem with your little spiel in favor of finger pointing moralizing. Typical conservative. Complains of problems of his own making.

      The death penalty won’t go jack to make prison guards safer. Not overcrowding prisons will. The overwhelming majority of offenders are there because of drug related offenses. They go in as dealers and go out as murderers. Draconian sentences, mandatory sentences, zero tolerance policies do nothing but flood our criminal justice system.

      If you actually had concern for what goes on in prisons, you would support decriminalization and legalization efforts.

        • Indiscriminate massacres have the same effect. Do you like those as well?

          The death penalty has never contributed to a decline in crime rates in any country at any time. Stop pretending its deterrence. Stop pretending you have a goal for it other than retribution. Be honest about why you like it.

          If the real goal is retribution for the worst crimes, then it has to be more drastically limited than it is now. Definitely not for felony murder. Reserve it for the worst of the worst forms of homicide and just them.

  5. samuel Johnston

    Dr. Fox,
    You may have a PhD. but I have a J.D. and thirty years of general legal practice. I too have given the matter a bit of thought.
    “To me, however, equally disturbing is how many people rejoiced over the poor excuse for justice.”
    “Justice” ? What are you talking about? Nothing can effect justice in these matters.
    I care little about the convicted criminal – nor should I. I do, however, care about the victim and his/her family. The only arguments that I will entertain are those that address the effects of capitol punishment on society.
    “The focus of the debate should not, however, be about the most efficient means of putting a condemned murderer to death, but about whether we should be retaining the barbaric and archaic practice in the first place.”
    This simple declarative sentence has neither evidence nor logic for backing, but is merely an appeal to the faithful. It is shameful for a person in your position to make such an emotional appeal. Hanging or decapitation were the methods favored in Eighteenth Century America. These were neither cruel nor unusual. Lethal injection was one of those iill considered “humane” improvements.

    • Are you familiar at all with Robert Blecker? The man is a professor of New York Law School and a proponent of the death penalty from a different angle than most. He is well worth looking up. You would probably like his writings.


      • samuel Johnston

        Thank you Larry. I gave the article a quick read. Blecker makes sense. At least he has actually spent a fair amount of time inside prisons. It is all too true that the worst of common law criminals are the best adapted to prison life.
        I seems bizarre to me that ordinary educated middle class people are so easily taken in by the death penalty opponents. These folks need to take a capitol felon home to dinner. They need to absorb their utter indifference to the pain of others. They need to meet their families, smell their breath, hear the excuses they propose to avoid responsibility for their actions.
        Finally, they need to get to know the families of the victims, the innocents, the children and widows of the policemen who were murdered because some vicious, greedy little snot, decided to hold up a Stop and Shop. Yes, these guys need to be executed, because they are just as deadly, dangerous, and uncaring of consequences as the premeditated murderer.

  6. the constitution does not say punishment has to be painless..

    now this is how against the bible this world is getting many of the same people who argue against capital punishment argue for assisted suicide..

    yes according to these people its cruel and unusual for any one to be on the side of holy scriptures about any thing now days ..

  7. Readers of this commentary might be interested in knowing that there is a curriculum designed for use by adults in a church setting on the death penalty. The assumption is that the adults in the class will have various points of view on the topic before the study begins. Learn more at http://deathpenaltycurriculum.com

  8. I find is appalling that ANYONE finds it right, justified, humane, etc, to execute ANYONE. I don’t care who it is, they are a human and deserve to be treated humanely. Those that vote for, agree to, assist in, etc., are no better than the criminal. IT IS NEVER RIGHT TO KILL ANOTHER PERSON, PERIOD. “Vengeance is mine, said the Lord.”

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