End Game

Jerome Richard

In February of this year a scheduled execution in California was postponed because no
medical professional would agree to administer a lethal injection.  This was not the three-part lethal injection widely used in U.S. prisons for execution.  Use of that procedure had been suspended on grounds that its does not sufficiently shield the condemned from pain and thus violates the eighth amendment's prohibition against cruel and unusual punishment.  Clearly the punishment is not unusual, so it has been suspended on grounds of cruelty.

A U.S. District judge told the state that they would either have to bring in a doctor to insure that the prisoner was completely anesthetized, or else skip the heart-stopping drug and simply kill him with an overdose of sedative.  The state then chose the second alternative, but the judge also ruled that the sedative must be administered by a licensed professional.  Doctors are ordinarily present in execution chambers, but only to certify that the condemned is indeed dead.  None could be found in California willing to administer the lethal dose, so the execution has been indefinitely postponed.

This is not the only such case.  The U.S. Supreme Court has also stayed executions in Florida and Missouri on the grounds that the three-stage injection might be cruel.

The history of capitol punishment is in one sense a history of trying to find a humane way of killing a condemned prisoner.  Hanging was replaced in some states by electrocution on the grounds that it is less painful. (It probably isn't, but we don't get first-hand testimony about it).  California tried the gas chamber as a kinder, gentler way of execution, and the attraction of lethal injection was the supposition that it would be less painful.  Of course, looking for a humane way of killing a convicted murderer strikes some as an Alice-in-Wonderland endeavor, but never mind.  The fact remains that until Oregon passed its assisted suicide law (upheld by the Supreme Court over the present administration's objections) if you legally wanted to die a humane death in this country, you had to be a murderer or a dog.

Many people have "living wills" which instruct loved ones and the medical community that you do not want extraordinary efforts taken to prolong your life if you are in pain with a condition for which there is no cure, but "pulling the plug" is illegal, though it is rumored that this is sometimes done.  (In Terri Schiavo's case, feeding and hydration was discontinued, allowing her to die a more or less natural death, and that took a court order.)  Dr. Kevorkian is in prison for helping people die quicker and less painfully than they might have without his assistance.

Contrary to popular belief, suicide is not a crime in the United States.  It was considered a felony under English common law and the punishment was burial in a public highway with a stake driven through the body or else a stone placed over it (to keep it from rising, which would also appear to usurp a decision belonging to God).  The last such burial, however, was in 1823.  Depending on the circumstances, the suicide's property might also be forfeited to the crown.  These penalties were officially abolished in 1961.

In the fifth century, the Catholic Church was forced to declare suicide a sin in part because too many people took it as a short-cut to heaven.  The logical conclusion, St. Augustine pointed out, would be to take one's life immediately after baptism.  The theological justification, however, was that suicide was a rejection of God's gift and a usurpation of a decision that rightfully belonged to Him.  It was therefore considered a grave sin.  It was also argued that to bear suffering was noble--an attitude that has not vanished.  The punishment was never adopted in America and as the states turned away from English common law, suicide ceased to be regarded as a crime.

Attempted suicide, however, is still illegal in some states.  The Model Penal Code specifically rejects criminalizing suicide, either attempted or successful.  In fact, its drafters wrote: "There is a certain moral extravagance in imposing criminal punishment on a person who has sought his own self-destruction..."  Causing suicide (i.e., pressuring someone into it against their will) is considered a form of homicide and is illegal everywhere.  That is not the same as aiding or abetting suicide which is illegal everywhere but Oregon even though suicide itself is not against the law.  Isn't it irrational to make it illegal to assist in a legal activity?  Granting someone the right to die while denying that person help in making it as easy as possible is surely a difference without a distinction.

The issue here only concerns people suffering great physical pain.  In cases of severe mental anguish it can be argued that there is always hope and that experience shows that many people attempting suicide for that reason are really making a desperate plea for help.  (Of course, they are not likely to enlist the aid of a physician.)

Why should the state be more solicitous of a murderer than it is of a person afflicted with an incurable disease?  That is not just moral extravagance, that is moral perversion.

Jerome Richard is a free-lance writer living in Seattle, Washington.  An earlier version of this essay appeared in The Humanist.  His website is: www.jeromerichard1.com.

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